Joint Procedure Committee Meeting
Scheduled on Thursday, March 28, 1985 @ 9:00 AM
MINUTES OF MEETING
Joint Procedure Committee
March 28-29, 1985
CALL TO ORDER
The meeting was called to order at 9:00 a.m., March 28, 1985, by Justice H. F. "Sparky" Gierke, Chairman.
ATTENDANCE
Present:
Hon. Wallace D. Berning
Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. Lawrence A. Leclerc
Hon. Beryl J. Levine
Hon. William S. Murray
Hon. James H. O'Keefe
Hon. Kirk Smith
Mr. Robert C. Heinley
Professor Larry Kraft
Absent:
Hon. Frank J. Kosanda
Mr. Leonard A. Bucklin
Mr. Ward M. Kirby
Mr. James L. Lamb
Mr. LeRoy A. Loder
Mr. David L. Peterson
Mr. Ray Rund
Mr. Dean Winkjer
APPROVAL OF MINUTES
Judge Leclerc MOVED that the minutes of the November 29-30, 1984, meeting be approved as submitted. Judge Burdick seconded the motion. Motion CARRIED.
RULE 52, NDRCivP / RULE 35, NDRAppP
The motion to reconsider which was tabled at the November 29-30 meeting CARRIED. Judge Burdick MOVED that the committee submit both propositions to the Supreme Court. Judge O'Keefe seconded the motion.
Judge Glaser moved a substitute motion that the proposed amendments to Rule 52 and Rule 35 as set forth on pages 40-44 of the meeting materials be submitted to the Supreme Court with a recommendation of the committee that they be adopted in the event that the
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Court does not accept the recommendations of the committee to amend Rule 52 as previously approved and set forth on page 35 of the meeting materials. Judge Leclerc and Professor Kraft seconded the motion. Motion CARRIED. Judge Berning, Judge Burdick, Judge O'Keefe, and Judge Smith voted no.
RULE 52, NDRCivP
FINDINGS BY THE COURT
(a) Effect. In all actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment; and in granting or refusing temporary injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum of decision is filed, it It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear therein in an opinion or memorandum of decision filed by the court. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).
(b) Amendment. Upon motion of a party made not later than 10 days after notice of entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59. When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the district court an objection to such findings or has made a motion to amend them or a motion for judgment.
RULE 52, NDRCivP - Explanatory Note
Rule 52 is derived from Rule 52, FRCivP, except for the deletion from subdivision (b) of references to Rule 58 as Rule 58 differs substantially from Federal Rule 58, and minor changes to our judicial system.
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Subdivision (a) was amended _________________________, effective _________________________, to track the 1983 amendment to FRCivP 52 (a).
RULE 35, NDRAppP
SCOPE OF REVIEW
(a) Civil Appeals; Intermediate Orders. Upon an appeal from a judgment, the supreme court may review an 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 determination 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. If the trial court fails to make any finding of fact necessary to support its conclusion of law under Rule 52(a), NDRCivP, the supreme court, on review, may (i) regard the requisite finding as having been made if it is supported by evidence viewed in a light most favorable to the omitted finding; (ii) dismiss any claim or defense for which the requisite finding cannot be made, or (iii) order a new trial as may be appropriate. 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.
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(c) Criminal Appeals; Intermediate Orders. Upon an appeal from a verdict or judgment, the supreme court may review an 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.
Judge Burdick MOVED that the changes referred to on pages 46-62 of the meeting materials be brought to the attention of the Court as necessary changes to be made if Rule 52a were abolished. Judge Smith seconded the motion. Motion CARRIED.
Judge Burdick MOVED to call the Court's attention to the many statutory provisions that require findings or findings of fact to be made by the Court that would have to be superseded or amended. Judge O'Keefe seconded the motion. Motion CARRIED.
DISCOVERY RULE PUBLISHED IN DECEMBER SBAND NOTEPAD
Judge Berning MOVED to not adopt the discovery rule as proposed on page 94-95 of the meeting materials. Judge Smith seconded the motion.
Judge Burdick MOVED a substitute motion to not adopt the proposed discovery rule as amended at this meeting. Those amendments are:
Line 7: delete "promptly" and insert "seasonably";
Lines 11-13: delete;
Line 18: insert "discoverable" after the word "any";
Line 19: insert "." after "pleading" and delete rest of line 19 through 21.
Proposed explanatory note - amended as follows:
After line 20 insert the following: "Information used exclusively for the purpose of impeachment or rebuttal is not subject to this rule."
Judge Leclerc seconded the motion. Motion CARRIED. Judge Glaser voted no. Professor Kraft abstained.
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RECESS
The meeting recessed to 1:00 p.m., March 28, 1985.
CALL TO ORDER
The meeting was called to order at 1:00 p.m., March 28, 1985, by Justice H. F. "Sparky" Gierke, Chairman.
ATTENDANCE
The roll call remained the same.
RULE 4(a), NDRAppP / § 28-27-04, NDCC
Judge Burdick MOVED to change line 3 of Rule 4, NDRAppP on page 184 of the promulgation materials from "60" days to "90" days and delete the provision for excusable neglect in subdivision (a). Judge Murray seconded the motion. Motion CARRIED. Judge Leclerc voted no.
RULE 4
APPEAL--WHEN TAKEN
(a) Appeals in Civil Cases. In a civil case the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 60 90 days of after the date of the service of notice of entry of the judgment or order appealed from. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this subdivision, whichever period last expires.
The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the trial court by any party pursuant to the North Dakota Rules of Civil Procedure hereafter enumerated in this sentence, and the full time for appeal fixed by this subdivision commences to run and is to be computed from service of notice of the entry of any of the following orders made upon a timely motion under such rules: (1) granting or denying a motion for judgment under Rule 50(b); (2) granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) granting or denying a motion under Rule 59 to alter or amend the judgment; or (4) denying a motion for a new trial under Rule 59.
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Upon a showing of excusable neglect, the trial court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. Such an extension may be granted before or after the time otherwise prescribed by this subdivision has expired, but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the trial court shall deem appropriate.
Judge Burdick MOVED that the Supreme Court be requested to reconsider its position in not recommending to the legislature that § 28-27-04 be amended to shorten the time for appeal in a civil case from 90 days to 60 days and to make such a recommendation to the next legislative session. Judge Murray seconded the motion. Motion CARRIED.
LOCAL RULES - EAST CENTRAL JUDICIAL DISTRICT
Judge Burdick MOVED for the Supreme Court to reconsider its action on Rule 83, NDRCivP, as submitted by the committee in 1981. Judge O'Keefe seconded the motion. Motion was deferred until copies of Rule 83 as submitted in 1981 were available.
Judge Smith MOVED to defer any action on the publication of the approved local rules of the East Central Judicial District until those rules are submitted by that district. Judge Levine seconded the motion. Motion CARRIED.
BENCH WARRANTS
Judge Leclerc MOVED to adopt proposed Rule 6.6, NDROC, on bench warrants as amended. Judge Murray seconded the motion. Motion CARRIED.
BENCH WARRANT
Whenever a person fails to appear in court as duly required by an order to show cause, subpoena, or other process, the judge, upon being satisfied of the failure to appear, may order the clerk to issue a bench warrant directed to all peace officers of this state to bring the person before the court immediately or at a time and place therein specified. The warrant may be served by any peace officer in any county of this state in the same manner as an arrest warrant.
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JUDICIAL REFEREES
Judge Leclerc MOVED that the Chairman be directed to write a letter to Bill Strutz and Bill Neumann and advise them that this committee has considered the pending legislation and has decided not to act on a rule of procedure for judicial referees until the legislation has been passed and if and when passed we would propose to consider a rule of procedure for judicial referees. Judge Burdick seconded the motion. Motion CARRIED.
RULE 58, NDRCivP
Judge Leclerc MOVED to defer action on the proposed Rule 58, NDRCivP, until legislation becomes final. Judge Murray seconded the motion. Motion CARRIED.
RECESS
The meeting was recessed to 9:00 a.m., March 29, 1985.
CALL TO ORDER
The meeting was called to order at 9:00 a.m., March 29, 1985, by Justice H. F. "Sparky" Gierke, Chairman.
ATTENDANCE
Present:
Hon. Wallace D. Berning
Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. Lawrence A. Leclerc
Hon. Beryl J. Levine
Hon. William S. Murray
Hon. James H. O'Keefe
Hon. Kirk Smith
Mr. Robert C. Heinley
Professor Larry Kraft
Absent:
Hon. Frank J. Kosanda
Mr. Leonard A. Bucklin
Mr. Ward M. Kirby
Mr. James L. Lamb
Mr. LeRoy A. Loder
Mr. David L. Peterson
Mr. Ray Rund
Mr. Dean Winkjer
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Judge Burdick MOVED that the chairman set the time and date of the next meeting. Judge O'Keefe seconded the motion. Motion CARRIED.
RULE 83, NDRCivP
Judge Burdick MOVED to adopt his proposed amendment to Rule 83, NDRCivP. Robert Heinley seconded the motion. Motion CARRIED. Judge Glaser voted no.
PRACTICE WHEN PROCEDURE NOT SPECIFIED
Pursuant to the North Dakota Local Court Rules (NDLocalCtR) each judicial district may from time to time make and amend rules governing practice in all of the courts in that judicial district not inconsistent with these rules or other rules prescribed by the Supreme Court. Upon adoption of any local rule it shall be referred to the Clerk of the Supreme Court for referral to the appropriate standing committee under Section 8, Rule on Procedural Rules, Administrative Rules and Administrative Orders of the North Dakota Supreme Court (NDRPR), for study and for recommendations to the Supreme Court for continuance, rejection, or adoption as a statewide rule.
Each judicial district, acting by all of the district court judges thereof, may propose from time to time local rules to govern procedure and practice in all courts of the district not inconsistent with these rules, other local rules of the district approved by the Supreme Court, other rules or administrative orders adopted by the Supreme Court, or any applicable statute. Proposed local rules must be forwarded to the Clerk of the Supreme Court for referral to the Joint Procedure Committee (Section 8, NDRPR) for study and recommendations to the Supreme Court for approval as a local judicial district rule, rejection, or adoption as a statewide rule. The proposed rule becomes effective upon approval by the Supreme Court.
In all cases not provided for by rule or statute, the district court may regulate its practice in any proceeding properly before it in any manner not inconsistent with these rules, adopted by the court pursuant to NDLocalCtR or by the Supreme Court or with any applicable statute. local rules of the district approved by the Supreme Court, other rules or administrative orders adopted by the Supreme Court, or any applicable statute.
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RULE 35, NDRAppP - Explanatory Note for Contingent
Recommendation to Supreme Court
Judge Leclerc MOVED to adopt the explanatory note as proposed and amended. Judge Smith seconded the note. Motion CARRIED.
Rule 35 represents an effort by the Committee to codify in these rules codifies embraces four statutes that the rule supersedes relating to the scope of review by the Supreme Court in civil and criminal cases. , all of which have been superseded. Subdivision (a) is taken from former § 28-27-28, N.D.C.C., except the last sentence of the statute regarding exceptions and a settled statement of the case was deleted. The fourth sentence of subdivision (b) was adopted, effective ________________________, in conjunction with the ____________________ amendment to N.D.R.Civ.P. 52 and is intended to provide a procedure for the supreme court to dispose of cases in which the trial court fails to make a necessary an essential finding of fact. Otherwise, Ssubdivision (b) is a restatement of former § 28-27-29. Subdivision (c) is derived from § 29-28-27, and is similar in scope to subdivision (a), but it relates to criminal appeals. Subdivision (d) is derived from former § 29-28-28. The rule does not change existing appellate practice.
RULE 4, NDRAppP - Explanatory Note
Judge Leclerc MOVED to adopt the proposed explanatory note as proposed with the following amendment:
Line 5: delete "60" and insert "90".
This rule is derived from Rule 4, FRAppP; without substantial change. however, subdivision (a) differs from the federal rule as amended in 1979. Subdivision (a) omits reference to bankruptcy, or maritime claims and provides for a single period of 60 90 days to file a civil notice of appeal, rather than 30 days in the ordinary suit and 60 days if the United States is a party, which is the federal practice. As amended, effective ________________, subdivision (a) no longer provides for an extension of time to file a notice of appeal in a civil action because of excusable neglect.
Subdivision (b) and the period for filing a criminal notice of appeal are taken intact from the federal rule.
Given the existing state practice with respect to entry of orders and judgment, time under civil appeals
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will run from "service of notice of entry" of the order or judgment. This differs from the federal rule which provides that the period is to run from "the date of entry." The responsibility under subdivision (a) is shifted to counsel to serve the notice and commence the period for appeal. The time limit for taking an appeal would not prevent the taking of an appeal at any time after the entry of the judgment or order and before service of notice of entry.
Subdivision (b) is similar to NDRCrimP 37 (b) and both subdivisions follow FRAppP 4(b) with two deviations. As amended, effective _____________________, the state provisions differ from the federal rule in the following two respects: (1) the subdivision is divided into three paragraphs, and (2) the provision relating to a prematurely filed notice of appeal is moved from the second sentence to the sixth sentence. The intent is to have paragraphs one and two pertain to appeals by the defendant and prosecution, respectively, and paragraph three pertain to appeals by either the prosecution or defendant.
RULE 37, NDRCrimP - Explanatory Note
Judge Leclerc MOVED to adopt the explanatory note to Rule 37 as proposed. Judge Burdick seconded the motion. Motion CARRIED.
Rule 37 has no counterpart in the Federal Rules of Criminal Procedure. Rule 37, FRCrimP, was abrogated in 1968 with the adoption of the Federal Rules of Appellate Procedure. The requirement for a rule of procedure for criminal appeals is rendered necessary because the North Dakota Rules of Appellate Procedure, promulgated in 1973, are limited in scope to appeals to the supreme court while the scope of criminal rules includes the municipal courts, county justice courts and county courts. The rule is intended to parallel as closely as possible the procedure of the Appellate Rules.
Subdivision (a) parallels NDRAppP 3(a). Under the provisions of Ssubdivision (a) nothing more is required for the perfection of an appeal than the filing of a notice of appeal with the clerk of the court that rendered the judgment. This subdivision acknowledges that the right to appeal in a criminal case is limited by statute. [State v. Higgins, 145 N.W.2d 478 (N.D. 1966); State v. McEnroe, 69 N.D. 445, 287 N.W. 817 (1939).]
Under existing law (NDCC § 40-18-19) the defendant may take an appeal from a judgment of conviction in
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municipal court. The State may take an appeal from any trial court in specific instances which are provided under Section 29-28-07, N.D.C.C. NDCC § 29-28-07 provided they don't the appeal does notinfringe upon the defendant's constitutional right prohibiting double jeopardy. It was held in City of Bismarck v. Materi, supra 177 N.W.2d 530 (N.D. 1970) that a city may appeal from a decision of the district court holding an ordinance unconstitutional.
Subdivision (b) parallels NDRAppP 4(b) and both subdivisions follow FRAppP 4(b) with two deviations. As amended, effective __________________, the state provisions differ from the federal rule in the following two respects:(1) the subdivision is divided into three paragraphs, and (2) the provision relating to a prematurely filed notice of appeal is moved from the second sentence to the sixth sentence. The intent is to have paragraphs one and two pertain to appeals by defendants and by the prosecution respectively, and paragraph three pertain to appeals by either the prosecution or defendant.
Subdivision (b) is adapted in the language of Rule 4(b), N.D.R.App.P., and governs the time for appeal with respect to all appeals may be taken within the scope of these Rules -- 10 days for the defendant and 30 days for the prosecution. This requirement is intended to avoid prolongation of the process and to keep delays at a minimum. The requirement that the notice of appeal be filed [with the clerk of the trial court] within 10 days of the entry of judgment or order appealed from has been termed "mandatory and jurisdictional." [9 Moore's Federal Practice, 987 (2d Ed. 1972), citing United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 4 L.Ed.2d 2959 (1960).] The "mandatory and jurisdictional" requirement is erased by the provision in Subdivision subdivision (b) which permits the trial court to extend the time for appeal upon a showing of excusable neglect. The 10-day provision under this Rule differs from existing State law in that (1) no distinction is made with respect to time between the rendition of the verdict or judgment and the order of the court; and (2) the time is substantially reduced. The provision in Rule 32 which requires that the defendant be advised of his right to appeal and the right of a person who is unable to pay the cost of appeal to have it provided at public expense is clearly a necessary part of a valid sentence and until it is given, the 10-day period for taking an appeal cannot begin to run because there is no valid sentence in existence. [9 Moore's, supra at p. 990]. The provision which precludes the extension of time for appeal pending motion for a new trial based on newly
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discovered evidence is necessary because, such a motion under Rule 33, that motion may be made within two years. The provision that "A notice of appeal filed after the announcement of the verdict, decision, sentence or order but before entry of the judgment or order shall be treated as filed after such the entry and on the day thereof", incorporates the holding of Lemke v. United States, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3 (1953).
Subdivision (c) is adapted from the language of Rule 3(c), N.D.R.App.P. NDRAppP, which has its origins in former Rule 37(a), F.R.Crim.P. FRCrimP. Three requirements for the notice of appeal are set out in this Subdivision subdivision: it must (1) specify the parties taking the appeal, (2) designate the verdict, judgment or order or part thereof appealed from, and (3) name the court to which the appeal is taken. Under the first requirement, it is important that the notice specify by name the appellant or appellants. [9 Moore's, supra, at p. 750.] Failure of the notice to correctly designate the court to which the appeal is taken does not vitiate it. Misnomer is immaterial, at least if it is obvious to which appellate court the appeal must go. [9 Moore's, supra, citing Cutting v. Bullerdick, 178 F.2d 774 (9th Cir. 1949)]. The requirement that the notice of appeal "designate the judgment or part thereof appealed from" was designed to simplify the taking of an appeal by requiring nothing more for its perfection than an identification of the judgment by the date of its entry.
Subdivision (d) is adopted from Rule 3(d), N.D.R.App.P.NDRAppP, and provides for service of the notice of appeal. Under this Subdivision subdivision the appellant is not obligated to serve the notice of appeal on other parties to the action. It is the duty of the clerk of the trial court (or magistrate where there is no clerk) to: (1) serve notice of the filing of notice of appeal either by personal service on the defendant or by mail addressed to him, and by mailing a copy thereof to the prosecutor and to the defendant's counsel, if any [The "if any, of record" provision recognizes that a defendant need not be represented by counsel, but if he is so represented, it must be noted on the record.]; (2) mail a copy of the notice of appeal and of the docket entries to the clerk of the appellate court; and (3) note on each copy served the date on which the notice of appeal was filed.
Subdivision (e) establishes a five-day maximum time limit within which the clerk, or judge where there is no clerk, must forward the file with those documents
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listed in the Rule to the clerk of court to which the appeal is taken.
Subdivision (f) provides the designation of parties to the appeal and follows existing law (Section 29-28-04, N.D.C.C.) to the extent that it makes explicit that the title of the action shall not be changed "in consequence" of the appeal. The designation of the party who contends against the appeal as appellee rather than respondent modifies existing practice (Section 29-28-04, N.D.C.C.) and this change is intended to avoid confusion, especially in special proceedings.
Subdivision (g) defines the effect of appeal. This subdivision follows existing law (Section 27-07.1-18 and 40-18-19, N.D.C.C.) in providing for trial anew when an appeal is taken to the district court or county court from the municipal court. This subdivision, along with the title, was amended in 1983, effective September 1, 1983, to delete obsolete references to the county court with increased jurisdiction.
Subdivision (h) is adapted from Rule 39, F.R.Crim.P., (abrogated in 1968). Provision for supervision of appeal is included in this Rule to provide for appeals to those courts (the District Courts and County Courts) not covered by the North Dakota Rules of Appellate Procedure. This S subdivision provides that the appellee may obtain relief from the appeal by one of the methods stated. The provision contemplates that the parties shall first apply to the trial court or any relief regarding the appeal; however, once the appeal passes to the appellate court, the trial court has no power to modify its judgment or dismiss the appeal.
The term "appellate court" as used in this Rule refers to the county court and the district court only.
It should be noted that although the rule does not always explicitly say so, it is the intent of this rule that the judge will perform the duties of the clerk where no clerk is appointed.
RULE 10, NDRAppP - Explanatory Note
Judge Leclerc MOVED to adopt the proposed explanatory note as submitted with the following amendment:
Line 12: after "Most" insert "of the provisions".
Judge Burdick seconded the motion. Motion CARRIED.
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This rule abolishes the former concepts of the "judgment roll" and the "settled statement of the case." In the ordinary case, no formal approval of the transcript by the trial court or the parties is necessary.
Subdivisions (a), (f), (g) and (h) are derived from the federal rule.
Numerous changes to Rule 10 were made in 1978. Basically, the changes are intended to (1) specify the duties of counsel and reporters in the area of preparation of the transcript, and (2) shorten the time period between the filing of the notice of appeal and the filing of the transcript. Most of the provisions of subdivisions (b) and (c) is are derived from Rule 3.03, Kansas Rules of the Supreme Court.
Subdivision (b) contains three notable changes from former practice. The first change codifies the former practice of requiring three copies of the transcript to be filed in the Supreme Court. The second change requires an order for a complete transcript unless all parties stipulate as to portions of the transcript which are not required. This eliminates problems of having numerous portions of the transcript ordered at different times with various completion deadlines. If a party unreasonably refuses to stipulate to exclude portions of the transcript unnecessary for the appeal, the party opposing proposingthe stipulation may obtain a court order requiring that party to pay for the unnecessary part of the transcript and reasonable attorney's fees.
The third and most significant change in subdivision (b) requires that the order for transcript be served by the appellant on the reporter before the filing of the notice of appeal. Proof of service of the order for transcript and a copy of the stipulation of excluded portions of the transcript, if a partial transcript is ordered, must be filed with the notice of appeal.
It should be noted that only the timely filing of the notice of appeal is required to invoke the jurisdiction of the Supreme Court. The order for transcript, a copy of the stipulation of excluded portions, if any, the bond in civil appeals (see Rule 7), and the docket fee (see Rule 12(a)) must be filed with the notice of appeal. These acts do not affect the validity of the appeal, but Rule 3(a) provides that failure of the appellant to take these steps is ground for "such action as the court deems appropriate, which may include dismissal of the appeal." Requiring these
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acts to be done at the time the notice of appeal is filed greatly reduces the number of time deadlines for which the attorney was responsible prior to the amendments.
Three significant changes from former practice are also found in subdivision (c). The first change requires that the transcript be completed by the court reporter within 50 days after the notice of appeal is filed, rather than 60 days after the order for transcript is received, as was formerly true. Subdivision (c) also requires that the court reporter serve copies of the transcript on the parties designated in the order for transcript. The reporter then must file three copies of the transcript and proof of service of the other copies with the Clerk of the Supreme Court. The costs of service and filing incurred by the reporter must be paid by the appellant, or other party required by court order to pay these costs.
The final changes in subdivision (c) is the elimination of the bargaining procedure between appellant and reporter. To avoid undue delays in the appellate process, the reporter, within 10 days after receipt of the order for transcript or an order of the trial court under subdivision (b), may demand advance payment for the estimated cost of the transcript. If the demand is not made within that period, advance payment is waived and the reporter will receive payment upon completion of the transcript.
Subdivision (e) basically restates the pertinent provisions of § 28-18-04, NDCC, which has been superseded. The last sentence is derived from Rule 83(k)(l), Idaho Rules of Civil Procedure was amended, effective ___________________, to provide a mechanism for the certification of transcript from courts utilizing an electronic court reporting system. See NDCC § 27-07.1-15.
RULE 27, NDRAppP - Explanatory Note
Judge Leclerc MOVED to adopt the proposed explanatory note as submitted with the following amendment:
Lines 7-10: delete.
Judge Levine seconded the motion. Motion CARRIED.
This rule is taken from Rule 37, FRAppP. it contemplates that most procedural matters will be determined by a single justice of the Court. The form
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of all papers relating to motions should comply with the requirements of Rule 32.
Subdivision (e) was adopted, effective ________________________________.
RULE 4, NDRCivP - Explanatory Note
Judge Leclerc MOVED to adopt the proposed explanatory note as submitted with the following amendment.
Line 7: Delete "of" and insert "over".
Line 86-90: delete and insert the following: "to make its provisions applicable to county courts as well as district courts."
Judge Murray seconded the motion. Motion CARRIED.
Rule 4 governs civil jurisdiction and service of process in North Dakota. Of necessity, it only slightly resembles Rule 4, FRCivP. This rule has been amended several times since its promulgation in 1957.
Ordinarily, Rule 4 concerned process, with no mention of jurisdiction. In 1971, what are now subdivisions (a) [Definition of Person] and (b) [jurisdiction of Over Person] were added. They were taken from the Uniform Interstate and International Procedure Act. Many changes were also made to subdivision (d) [previously (c)] concerning personal service, several of which were taken from that Act. Because of the addition of the above provisions, the various subdivisions were given new letter designations. A few other minor amendments were also made at that time.
Several amendments were made to this rule in 1975 [effective January 1, 1976]. The definition of a "person" [subdivision (a)] was expanded to include all fiduciaries and two or more persons having a joint or common interest. Subdivision (b)(2)(H) was added to greatly broaden jurisdiction. Subdivision(b)(5), based on the doctrine of forum non conveniens, was added at the same time. For the purpose of clarity and completeness of Rule 4, subdivisions (h)(4) and (j) were added and minor amendments were made to subdivisions (d)(2)(D), (d)(2)(G), (d)(3), (e)(6) and (h)(4). Some minor restructuring was also done to subdivisions (e)(7) through (i), basically redesignating the subdivisions.
Subdivisions (e) (1) and (e) (2) were substantial rewritten, effective January 1, 1977, to facilitate ease of understanding. Subdivision (e)(4) was also
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amended to require the mailing of the summons and complaint to the "defendant's last reasonably ascertainable post-office address."
In 1978 [effective January 1, 1979], Rule 4 was again amended. These amendments concerned the "minimum-contact" theory. In the opening provisions of subdivision (b)(2), the words "having such contact with this state that the exercise of personal jurisdiction over him does not offend against traditional notions of justice or fair play of the due process of law * * *" were added. This makes it clear that personal jurisdiction must meet the minimum-contact theory as well as falling within one of the circumstances to subparagraphs A through I. Previously those same words were just a part of subparagraph (H), which was also divided into (H) and (I), and sexual intercourse added as one of the circumstances and the "any other status" restricted to "legal" status. Subdivision (e)(1)(D) was also amended by adding the qualification that "the property or credit is the subject matter of the litigation or the underlying claim for relief relates to the property or credits." This is a direct response to the holding in Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2659, 53 L.Ed.2d 686 (1977).
Rule 4 was again amended in 1983, effective September 1, 1983. Subdivisions (d)(2)(A) and (d)(2)(D) were amended by separating the existing methods of service into numbered methods and adding provisions for making personal service of process within the state by any form of mail addressed to the person to be served and requiring a signed receipt and resulting in delivery to that person. Subdivision (d) (3) (C) was amended to add "to that person" and "(2) or" was added to subdivision (d) (2). Subdivision (j) was amended to change last "known" post office address to last "reasonably ascertainable" post office address to require that a person serving process not rely on a last "known" address if a later or current address is "reasonably ascertainable."
It is emphasized that personal service is preferred. When this is not possible, service by publication is authorized by subdivision (e), which requires a showing that personal service cannot be made upon the defendant in North Dakota [see subdivision (e)(2) for specific requirements].
A problem may arise with service by mail under subdivisions (d) (2) or (d) (3) (C) when the person to be served refuses delivery. This refusal of delivery is tantamount to receipt of the mail for purposes of service. On the other hand, if the mail is unclaimed,
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no service is made. Subdivision (k) was added in 1983, effective September 1, 1983, to make it clear that refusal of delivery by the addressee constitutes delivery.
Statutes governing special procedures often conflict with these rules. As an example, NDCC § 32-19-32 concerning the time period for mailing the summons and complaint after publication in a mortgage foreclosure conflicts with Rule 4(d)(4). In this situation, Rules 4(d)(4) and 81(a) recognize that provisions of the statute prevail.
Subdivisions (c)(2) and (e)(2) were amended, effective _____________________, to make its provisions applicable to county courts as well as district courts.
Judge Smith MOVED to amend Rule 4, NDRCivP, on page 2 of the promulgation materials.
Line 9 (page 2): delete "of" and insert "over".
Judge Leclerc seconded the motion. Motion CARRIED.
RULE 31, NDRCivP - Explanatory Note
Judge Smith MOVED to adopt the proposed explanatory note as submitted with the following amendment:
Line 3: delete "in conjunction with" and insert "to conform to".
Judge Leclerc seconded the motion. Motion CARRIED.
Rule 31 is identical to derived from Rule 31, FRCivP.
Subdivision (b) was amended, effective _____________________,in conjunction with to conform to the ________________ amendment to Rule 5 (b) (1) , NDRCivP, which limited the situations when discovery materials may be filed.
RULE 31, NDRCrimP - Explanatory Note
Judge Smith MOVED to amend the explanatory note to Rule 31, NDRCrimP, as proposed with the following amendments:
Line 8: underscore "United States";
Line 32: after "jury" insert "in an appropriate case";
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Line 40: delete "the";
Line 44: insert "of" after "polling";
Line 64: delete "who" and insert "that";
Line 73: insert the correct section which will be determined by Senate Bill No. 2445.
Motion CARRIED. Judge Glaser and O'Keefe voted no.
Rule 31 is an adaptation of Rule 31, F.R.Crim.P., except as to the addition of Subdivision for subdivision (e) which was added by the Rules Committee to provide for special verdicts and differs from its federal counterpart.
Subdivision (a) requires that the verdict be unanimous and be returned to the judge in open court. We retains the requirement of unanimity notwithstanding that the U.S. United States Supreme Court has allowed less than unanimous verdicts. [See Johnson v. Louisiana, 255 La. 314, 230 So.2d 825, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), and Apodaca v. Oregon, 1 Or.App. 483, 462 P.2d 691, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972).]
Under Ssubdivision (b), whenever there is more than one defendant or more than one count, the jury may return a separate verdict with regard to each defendant and in regard to each count. If this procedure is followed and error is found requiring reversal in regard to one defendant or to one count, this would allow a retrial of that issue alone and would not require a retrial as to all issues or of the entire case. Where If the jury is unable to arrive at a verdict in regard to one of the defendants or to one of the counts, it may return a verdict on those counts or defendants on which it is agreed. It may then retire again and resume its deliberations about the remaining defendants or the remaining charges. Further, if the jury does not reach agreement on all charges, those matters on which it does not agree may be tried again. [United States v. Skidmore, 123 F.2d 604 (7th Cir. 1941), rehearing denied October 1941.]
Under Ssubdivision (c), a jury in an appropriate case may convict the defendant of a lesser offense necessarily included in the offense charged. [Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956).] Subdivision (c) also provides that the jury may find the defendant guilty of an attempt to commit the offense charged or an offense necessarily included therein, if the attempt is an offense.
Subdivision (d) permits the provides that when a verdict is returned it must be returned in open court.
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Upon the request of any party, the jury will be polled to determine if the verdict is unanimous. The purpose of polling of the jury is to ascertain with certainty that each of the jurors approves of the verdict as returned, and that no one has been coerced or induced to a verdict to which he has not fully assented.
Subdivision (e) differs from its federal counterpart, as adopted in 1972. The federal rule provides for a special verdict for only the extent of an interest or property subject to criminal forfeiture.
Subdivision (e) has no Federal counterpart. It was added to this Rule for its value to the court as a tool in determining factual issues. Under the Federal system, the use of the special verdict has been held to be error, because there is no provision for such verdicts under the Federal Rule. [Gray v. United States, 174 F.2d 919 (8th Cir. 1949), as corrected on denial of rehearing June 1949, rehearing denied July 1949, but see United States v. Spock, 416 F.2d 165, 182 (1st Cir. 1969), fn 41.] A determination of factual issues in the specific instances provided in this Ssubdivision is deemed to be within the province of the Jury. Since Because it is the court whothat determines the issue of law, the scope of the jury is not exceeded. [See Section 337 and commentary thereto, Official Draft, Code of Criminal Procedure by the American Law Institute (1930).]
Subdivision (e)(1) was amended, effective ___________________, to substitute "lack of criminal responsibility by mental disease or defect at the time of the alleged crime" for the term "insanity" in order to be consistent with Rule 12.2(a) and NDCC § ___________________________________.
RESOLUTION
Judge Murray MOVED to adopt the following resolution. Judge Burdick and Smith seconded. Motion CARRIED.
RESOLUTION
WHEREAS, the members of the Joint Procedure Committee wish to show their appreciation of record for the services of the late Justice Paul M. Sand as Chairman of this Committee, now, be it resolved:
That the members of the Joint Procedure Committee of the North Dakota State Supreme Court do, by this Resolution, express their deep appreciation for the fine services of Justice Paul M. Sand during the many years which he chaired this Committee;
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Justice Sand's efficient yet good-humored direction and guidance of this Committee has played an important role in the accomplishments of this Committee.
We are saddened by his loss.
Dated: March 28, 1985.
PROMULGATION
Judge Burdick MOVED to submit the rules as contained in the promulgation materials and rules approved at this meeting to the Supreme Court for promulgation. Professor Kraft seconded the motion. Motion CARRIED.
ADJOURNMENT
The meeting was adjourned.
__________________________
Secretary