Joint Procedure Committee Meeting

Scheduled on Tuesday, April 12, 1977 @ 2:30 PM

MINUTES OF MEETING

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

April 12, 1977

The meeting was called to order at 1:30 p.m., April 12, 1977, by Justice Paul M. Sand, Chairman.

ATTENDANCE

Members Present:

Hon. Eugene A. Burdock
Hon. Larry Hatch
Hon. Kirk Smith
Hon. Halvor L. Halvorson
Hon. William S. Murray
Mr. Larry Kraft
Mr. James L. Lamb
Mr. Kent Higgins
Hon. Robert Vogel
Hon. Paul M. Sand

Staff Present:

Joel Gilbertson
Eveleen Klaudt

MINUTES

Action on the Minutes of the meeting of January 10, 1977, was deferred to a later time.

Staff Attorney, Joel Gilbertson, gave a brief resume of the action of the Legislature on matters discussed at the previous meeting.

Section 27-11-03 - Rule 46

Mr. Higgins MOVED that Rule 46, North Dakota Rules of Appellate Procedure, be amended to reflect the age of 18 rather than 21. Mr. Lamb seconded the motion.

Justice Vogel made a substitute motion to have Rule 46 state that admissions to practice shall be governed by § 27-11-03, NDCC. Judge Hatch seconded the motion.

Justice Vogel WITHDREW his motion.

Judge Burdick made a substitute motion to add to Rule 46 the provisions that to the extent that this rule is inconsistent with Chapter 27-11, NDCC, the provisions of the statute control. Judge Smith seconded the motion.

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All motions were withdrawn.

Judge Burdick MOVED that the staff attorney, prior to the next meeting, prepare an amendment to Rule 46 covering all discrepancies, and that the staff attorney be directed to prepare the draft in the manner that will reconcile obvious inconsistencies, to be considered at the next meeting. Judge Smith seconded the motion. Motion CARRIED.

Section 28-18-01

Judge Burdick MOVED that the last sentence of § 28-18-01 be superseded. The motion was seconded by Judge Smith. Motion CARRIED.

Section 28-18-03

Judge Burdick MOVED that § 28-18-03, NDCC, be superseded. Judge Smith seconded the motion. Motion CARRIED.

Section 28-18-05 - Rule 10

Mr. Higgins MOVED that the staff attorney be directed to review Appellate Rules 10 and 11 with the idea of preparing a timetable for producing transcripts and the record on appeal, and take into consideration §§ 28-18-04, 28-18-05 and 28-18-06; and to make a study of the problems involved. Mr. Lamb seconded the motion. Motion CARRIED.

Section 28-18-07

Judge Hatch MOVED that § 28-18-07 be superseded by Rule 10, NDRAppP. Mr. Lamb seconded the motion. Motion CARRIED.

Section 28-18-08

Judge Hatch MOVED that § 28-18-08 be superseded by Rule 10, NDRAppP. Mr. Lamb seconded the motion. Motion CARRIED.

Section 28-18-09

Mr. Higgins MOVED that § 28-18-09 be superseded by Rules 10 and 28, NDRAppP, Rule 59, NDRCivP, and Rule 33 NDRCrimP. Judge O'Keefe seconded the motion. Motion CARRIED.

Mr. Lamb MOVED that the staff attorney draft proposed amendments to Rule 59, NDRCivP and Rule 33, NDRCrimP, which would retain pertinent provisions from § 28-18-09, NDCC. The staff attorney was further directed to explore the possibility of allowing a trial court to have transcripts available prior to a ruling on a motion for a new trial, or a motion for judgment notwithstanding the verdict. Judge Murray seconded the motion. Motion CARRIED.

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Section 28-26-02(4)

Mr. Higgins MOVED that § 28-26-02(4) be shown as "Considered" in the Advisory Notes following Rule 39. Motion LOST for lack of a second.

Judge Burdick MOVED (1) that a study be made by the staff attorney with the idea of amending Rule 38 or 39 to incorporate the concept that the Supreme Court may allow costs in a reasonable amount before argument in the event the appeal is dismissed or withdrawn, and for argument, and if the judgment is affirmed the court may also award damages for any delay not exceeding ten percent of the amount of the judgment, and such additional costs as the court may determine to be reasonable; and (2) that § 28-26-02(4) be superseded. Judge Murray seconded the motion. Motion CARRIED.

Section 28-27-01

Mr. Higgins MOVED that § 28-27-01 be superseded by the Rules of Appellate Procedure. Mr. Lamb seconded the motion. Motion WITHDRAWN.

Mr. Lamb MOVED that the staff attorney prepare a proposed amendment to Rule 1 by adding a subsection (d) to clearly show that the party perfecting the appeal should be known as the appellant, and the responding party be known as the appellee. Judge Burdick seconded the motion. Motion CARRIED.

Section 28-27-04

Judge Burdick MOVED that the staff attorney review the question and prepare a memorandum addressing the problem, the intent of the motion being to allow the staff attorney a free hand in preparing amendments to Rule 4. Judge O'Keefe seconded the motion. Motion CARRIED.

Section 28-27-05

Judge Burdick MOVED to defer action on this section so that a study can be made of the power of the legislature to prescribe the manner of taking an appeal as a prerequisite for invoking appellate jurisdiction. Judge Halvorson seconded the motion. Motion LOST.

NEXT MEETING DATE

Mr. Higgins MOVED that the next meeting of the Joint Procedure Committee be held on Thursday, June 2, 1977, at 1:00 p.m., and continue through Friday, June 3, 1977, until 4:30 p.m. Judge Burdick seconded the motion. Motion CARRIED.

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AGENDA

The agenda for the next meeting shall consist of the following:

(1) The remainder of the agenda proposed for the April 12 meeting;

(2) The matters referred to the staff attorney in the foregoing Minutes for research;

(3) The proposed amendments to the Criminal Rules;

(4) Other pertinent questions arising in the interim.

__________________________
Secretary