Joint Procedure Committee Meeting

Scheduled on Thursday, April 20, 1989 @ 10:00 AM

MINUTES OF MEETING

Joint Procedure Committee

April 20, 1989

CALL TO ORDER

The meeting was called to order at 9:00 a.m., April 20, 1989, by Justice H. F. "Sparky" Gierke, Chairman.

ATTENDANCE

Present:

Hon. Wallace Berning
Hon. Gerald Glaser
Hon. Ronald Hilden
Hon. Lawrence Leclerc
Hon. Beryl Levine
Hon. Kirk Smith
Mr. Patrick Brendel
Mr. Robert Heinley
Mr. John Kapsner
Mr. Dwight Kautzmann
Professor Larry Kraft
Mr. James Lamb
Mr. Ronald McLean
Mr. David Peterson

Absent:

Hon. Eugene Burdick
Hon. Frank Kosanda
Hon. James O'Keefe
Mr. Leonard Bucklin
Ms. Cathy Howe Schmitz

Staff:

DeNae Kautzmann, Staff Attorney
Sandy Demianew, Secretary

WELCOME

Justice Gierke introduced the new Committee members Pat Brendel and John Kapsner. A warm welcome was extended to them.


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APPROVAL OF MINUTES

Judge Leclerc MOVED that the Minutes of the Joint Procedure Committee meeting of March 24-25, 1988, be approved as submitted. Mr. Kautzmann seconded the motion. Motion CARRIED.

EXPLANATORY NOTES TO CIVIL RULES AMENDED AT DECEMBER 1987 MEETING AND RULE 51(c), NDRCivP, AND EXPLANATORY NOTE

Judge Leclerc MOVED to approve the explanatory notes to the Civil Rules that were amended at the December 1987 meeting found on pages 66-116 of the meeting materials and to delete therein reference to the North Dakota Revised Code of 1943 and insert in lieu thereof reference to the North Dakota Century Code. Mr. Lamb seconded the motion. Motion CARRIED. Judge Leclerc MOVED to approve the explanatory note to Civil Rule 50(d) contained in Handout #16. Mr. Kautzmann seconded the motion. Motion CARRIED.

Mr. Kapsner MOVED to approve Civil Rule 51(c) and the explanatory note as contained on pages 104-105 of the meeting materials. Judge Leclerc seconded the motion. Motion CARRIED.

RULE 51. INSTRUCTIONS TO JURY

(c) Exceptions to Instructions. The giving of instructions and the failure to instruct the jurors shall be are deemed excepted to unless the court, before instructing the jurors, shall submits to counsel the written instructions which it proposes to give to the jurors and shallasks for exceptions to be noted, and. tThereupon, counsel must shalldesignate such the parts or omissions of such instructions as he that counsel may deem considers objectionable. Thereafter, only the parts or omissions so designated shall be are deemed excepted to by the counsel designating the same. All proceedings connected with the taking of such exceptions shall must be in the absence of the jurors and a reasonably sufficient time shall must be allowed counsel to take such exceptions and to


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note the same them in the record of the proceedings.

RULE 51(c), NDRCivP

Judge Berning wrote to the Committee suggesting that Rule 51(c) be amended to provide that when an objection is made to jury instructions that specific grounds be stated for the objection. The Committee reviewed proposed Rule 51(c) contained in Handout #5 which provides for such amendment. Judge Glaser indicated that he agreed with the change. He indicated that if a lawyer cannot point out what is wrong or what is lacking with an instruction not much is being accomplished. Pat Brendel stated that what the judges are saying here is that if there are no grounds then there is no issue to appeal.

Mr. Kautzmann indicated that in the recent Klem case the court indicated that even though there were no specific grounds stated for the objection to the jury instruction that it made no difference. He stated that the court has ruled on this issue and that we do not need to amend Rule 51(c), NDRCivP. Mr. Peterson agreed that a change was not needed. Trial counsel have other things at that time to be concerned with and are not able to review the instructions until the end of the trial which does not give lawyers adequate time to review and research them in order to determine what specific objection would be made.

Judge Glaser indicated that the problem is that the attorneys have the time to think about it later when the appellate process starts and at that time find the grounds for the objection. He indicated that it is best to do it initially at the trial level in order to give a fair trial the first time around.

Staff pointed out to the Committee that the rule in the State of Iowa, which was alluded to by Judge Berning in his letter, provides that specific grounds for objection be stated and also that the Federal rule requires grounds for the objection. Judge Glaser pointed out that at the present time in order to protect oneself the lawyer only needs to take exception to all of the instructions and what good is that. Mr. Kautzmann stated that under the proposal a lawyer would only have to object to procedure and that they don't have time to review the instructions so there would be nothing gained. Judge Hilden indicated that perhaps this area of law could be handled in the pre-trial conference. Mr. Peterson stated that that


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would not resolve the problem because often times the judge wants to wait to hear the evidence.

Mr. Kautzmann indicated that we would have more of a problem with the proposed rule in cases that involve novel issues than with the current rule. The real question here is whether a lawyer has the time to adequately review and research an instruction to find grounds for an objection. Mr. Kapsner pointed out that under the proposed rule the burden would be on the prosecutor to object to whatever the defense attorney has worked on for three days in drafting a proposed instruction since the prosecutor doesn't have three days to research it and that's not right or fair.

Judge Leclerc MOVED to kill consideration of proposed Rule 51(c), NDRCivP. Mr. Lamb seconded the motion. Motion CARRIED.

EXPLANATORY NOTE TO RULE 81, NDRCivP, AMENDED AT MARCH 1988 MEETING

Mr. Lamb MOVED to approve the explanatory note to Rule 81, NDRCivP. Pat Brendel seconded the motion. Motion CARRIED. Judge Leclerc requested that staff counsel double-check the legislation regarding appeals from non-administrative bodies. If changes to the rule are necessary because of this legislation, it must be brought back to the Committee.

EXPLANATORY NOTES TO CRIMINAL RULES AMENDED AT DECEMBER 1987 MEETING

Mr. Peterson MOVED to adopt the criminal explanatory notes found on pages 121-182 of the meeting materials except for the explanatory note to Rule 15 on pages 146-148. Judge Leclerc seconded the motion. Motion CARRIED.

Judge Leclerc pointed out that Rule 15(a), NDRCrimP, should refer to Coy v. Iowa, 108 S.Ct. 2798 (1988). Mr. Kapsner indicated that he did not believe that the explanatory note should contain reference to the Governor's Commission on Victims and Witnesses. Mr. Peterson MOVED to adopt the explanatory note to Rule 15(a), NDRCrimP, found on pages 146-148 of the meeting materials with the deletion of the last sentence on lines 28-32 on page 147. Mr. Heinley seconded the motion. Motion CARRIED.


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Rule 15 is substantially the same as Rule 431, Uniform Rules of Criminal Procedure (1974). Former Rule 15, effective until January 1, 1980, was an adaptation of Rule 15, FRCrimP. The present rule provides for a greatly expanded use of depositions in criminal cases. Subdivisions (a)(b)(f) and (h) were amended, effective ______________. The amendments are technical in nature and no substantive change is intended.

Subdivision (a) permits depositions to be taken to perpetuate testimony, as in the former rule, but also for discovery purposes, which was not previously provided for. Rather than requiring court approval of discovery depositions, this subdivision changes the emphasis by allowing them without court approval, subject to the right of party or deponent to move under paragraph (4) to have a court order that the deposition be continued, not taken, or limited in scope or manner of taking. The court will set a time after which discovery depositions may not be taken without court permission. Leave of court is required for the taking of a deposition to perpetuate testimony. Subdivision (a) was amended effective _______________. The amendment was made in order to clarify the fact that audio-visual depositions may be taken under the rule. The amendment also provides that the method of taking audio-visual depositions is governed by Rule 30.1, NDRCivP.

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The place of taking a deposition is governed by subdivision (e). Restriction is placed on taking depositions outside of this state in situations where the defendant may not travel or be transported to the proposed location, unless he the defendant waives the right to be present.

Subdivision (f) concerns the presence of the defendant at a deposition. Distinction is made between a discovery deposition and one to perpetuate testimony. The defendant is not required to be present at a discovery deposition, but his the defendant's presence may enable the prosecution to use the deposition as substantive evidence at trial, as provided in subdivision (h). The taking of a deposition to perpetuate testimony


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necessitates the defendant's presence, with three exceptions: defendant is excused by the court upon an appearance and voluntary waiver of the right to be present; defendant is voluntarily absents himself absent after start of deposition; or if a judicial officer presiding over te deposition justifiably excludes the defendant because of his the defendant's disruptive conduct. No warning is expressly required before exclusion, as in Rule 43(b)(2). If the defendant is not present at a deposition to perpetuate testimony under one of the above exceptions, his the defendant's counsel must be.

Paragraph (3) of subdivision (f) covers the situation when the defendant is not present at the start of a deposition to perpetuate testimony and has not been excused under paragraph (2). The taking may proceed as a discovery deposition or the prosecuting attorney, if he the prosecuting attorney is taking the deposition, may postpone the taking and secure a court order to take the defendant into custody to assure his the defendant's presence, so that the deposition will have the greater admissibility of a perpetuation deposition.

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EXPLANATORY NOTE TO RULE 803, NDREv, AMENDED AT MARCH 1988 MEETING

Judge Leclerc MOVED to approve the explanatory note to Rule 803, NDREv, as contained in Handout #7 with the deletion of the last sentence on lines 48-50. Judge Glaser seconded the motion.

Judge Smith indicated that he would like the word "alleged" inserted before the phrase "sexual abuse" on line 40. Justice Gierke indicated that that may be improper as the rule talks about victims. Judge Glaser felt that the explanatory note should only indicate that the amendment provides a hearsay exception in sexual abuse cases and the rest of the explanation should be deleted. Mr. Peterson offered an alternative whereby the note would indicate that the hearsay exception for children who are alleged victims of sexual abuse is provided by the amendment. Professor Kraft questioned the language used to


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explain the change in the numbering system for paragraphs 24 and 25. He suggested that the language be as follows: "Former paragraph (24) was renumbered to paragraph (25) . . ." and to delete the rest of the language contained in lines 43-50. Judge Leclerc accepted Professor Kraft's amendment into his motion with the approval of the second. Motion CARRIED.

Rule 803 is an adoption of Rule 803 of the Federal Rules of Evidence with one notable change occurring in Rule 803(22), which is discussed below.

The last two sentences in 803(8) are derived from Sections 31-09-11 and 31-09-12, NDCC, which are superseded by these rules. Cf. Rules 803 (24) (25) and 804(b)(5).

The excepted situations listed in this rule traditionally have been deemed to have circumstantial guarantees of trustworthiness which render hearsay evidence reliable and admissible, even though the declarant may be available to testify.

The first three exceptions listed comprise what has been loosely termed the "res gestae" exception. That phrase is not used in this rule. The use of the specific exceptions, rather than the vague and elusive "res gestae" is felt to depict a clearer picture of which statements are within the exception, and the justification for their admissibility. This approach has been specifically approved by the North Dakota Supreme Court. Starr v. Morsette, 236 N.W.2d 183 at 187, n. 1 (N.D. 1975).

Subdivision (22) provides that, in certain instances, evidence of a previous final judgment comes within a hearsay exception. The subdivision differs from its federal counterpart in that the federal exception for pleas of nolo contendere has been deleted as that plea is not used in the State courts of North Dakota. Rules 11 and 12, NDRCrimP. The subdivision also was changed by adding that post-conviction proceedings, like appeals, do not affect the admissibility of previous convictions.

It should also be noted that these exceptions remove only the hearsay objection to evidence. Evidence of a past conviction under paragraph (22) sought to


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be introduced must also meet the requirements of Rule 609, NDREv.

Rule 803 was amended, effective ____________, to provide a hearsay exception for child victims of sexual abuse. Former paragraph (24) was renumbered to paragraph (25) and amendments to this paragraph are technical in nature and no substantive change is intended.

The basis for the admission of hearsay evidence under any of these exceptions is its circumstantial guarantees of trustworthiness. Paragraph (24) (25) provides that a statement not specifically listed may also be admitted if it has comparable guarantees of trustworthiness and meets the three listed conditions. Furthermore, notice must be given of its intended use.

This subdivision is designed to prevent the strained extensions of hearsay exceptions that have occurred in the past. Evidence meeting the requirements of paragraph (24) (25) should be admitted and now may be without distorting the listed exceptions.

CONTEMPT AND UNIFORM LAW COMMISSIONERS' AMENDMENTS TO RULES OF EVIDENCE

The Committee reviewed the contempt drafts prepared by Judge Burdick found in Handouts #9 and #15. The Committee indicated that since Judge Burdick was absent they did not feel comfortable in discussing the Uniform Law Commissioners' Amendments to the Rules of Evidence. Mr. Kautzmann MOVED to strike the Uniform Law Commissioners' amendments from the agenda. Judge Glaser indicated that we have not received an explanation as to why we should consider the Uniform Law Commissioners' Amendments. He suggested that a policy be implemented whereby matters that are brought before the Committee must be specific in nature so that rules are not considered in a vacuum. We need to know why an amendment is good and why our rule is deficient. Judge Leclerc indicated that many of the Uniform Law Commissioners' amendments to the Rules of Evidence are good and should be reviewed by the Committee. Motion CARRIED.

The Committee felt that Judge Burdick could best argue what he sees are necessary changes in the contempt law. However, Mr. Peterson indicated that he


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did not feel that the role of the Joint Procedure committee is to address legislative changes. He believes the Committee's function is in the rules area only. Judge Leclerc indicated that there is precedent for committees to propose legislation. However, he agrees with Mr. Peterson that the Joint Procedure Committee should not be proposing legislation.

Staff counsel gave a short overview of what the Committee has been doing for the last several years with the contempt issue and what the other states of the union are doing as well as the trend of recent case law. Justice Levine reiterated the difference between civil and criminal contempt. For civil contempt, you look at the remedy whether its conditional and coercive. For criminal contempt, you look at whether its punitive and unconditional. She indicated that the North Dakota Court has spoken in Baer v. Hampton and we also have the U.S. Supreme Court decision in Hicks.

Judge Glaser stated that there is no problem in defining contempt. The problem is when you start a proceeding you don't know what kind of contempt it is because it can be one or the other. The classic case is in child support cases. If someone wants counsel, what do you do?

Mr. Peterson MOVED to table indefinitely. Judge Leclerc seconded the motion. Judge Glaser MOVED a substitute motion to recommend the contempt proposal contained in the meeting materials on pages 26-31 to be submitted to the Legislature. Pat Brendel seconded the motion.

The Committee felt that we have worked on this for a number of years, a lot of work has gone into this and we do not wish to throw it away. However, several Committee members felt that if we propose this legislation it carries the connotation that we approve it and recommend it. Justice Gierke suggested that perhaps we could ask for an interim study. Judge Leclerc did not like asking the Legislature to mess around with the court's inherent powers. He thinks we should deal with this matter by rule. Judge Glaser again pointed out that this legislative matter is not unusual for the Committee to consider nor is it unusual to recommend changes to the Legislature. Pat Brendel stated that it is much better to go statutorily because of the due process concerns. Motion CARRIED.


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EXPLANATORY NOTE TO RULE 23, NDRCrimP

Mr. Kapsner MOVED to delete everything after line 48 in Handout #19 concerning Rule 23, NDRCrimP. Mr. Kautzmann seconded the motion. The explanatory note was compared to the current explanatory note in the Rule Book and it appears that paragraph (3) except for the first sentence needs to be stricken. Staff was requested to propose an explanatory note for consideration after lunch. Mr. Kapsner withdrew his motion with the consent of the second.

RULE 3.2, NDROC

Staff counsel explained the proposal before the Committee and that subsection (a) was previously approved at the March 1988 meeting.

Mr. Lamb believes that subsection (b) in the alternative rule should be subsection (a). He feels that exceptions should be stated first. However, philosophically he feels that the rule should encompass all motions and that there not be any exceptions.

Mr. Peterson MOVED not to adopt subsection (b) which deals with summary judgment on lines 46-68 of the proposed rule in Handout #3. Judge Smith seconded the motion.

The reason that the summary judgment section should be left out is because Civil Rule 56 is sufficient. Judge Glaser indicated that Rule 56 does not track Rule 3.2 and that what we are working toward is having one procedure. All motion rules should be reviewed and reconciled. The present proposal before the Committee is a band-aid approach. Mr. McLean stated that procedurally both the local Federal rules and local rules in Minnesota are worthwhile. We should not be putting special procedures into Rule 56. It makes perfect sense that summary judgments be treated differently. Further discussion was held on this topic including whether additional response time should be given for summary judgment motions in subsection (a). Judge Smith indicated that the viable way to handle Rule 3.2 is to treat it as a general rule for all except specific rules which prevail.

Mr. Kautzmann MOVED to terminate discussion. Mr. Peterson seconded the motion. Motion failed. Mr. Kautzmann indicated that if we have a problem with Rule 56 then it should be addressed


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separately. We need to determine how the conflicting rules are going to be handled.

RECESS

The meeting was recessed until 1:00 p.m., April 20, 1989.

CALL TO ORDER

The meeting was called to order at 1:00 p.m., April 20, 1989, by Justice H. F. "Sparky" Gierke, Chairman. The attendance remained the same as in the morning session except that Mr. Leonard Bucklin was present.

RULE 3.2, NDROC, CONTINUED

Mr. Kapsner MOVED to amend proposed Rule 3.2 at line 40 of Handout #3: "must be made not later than five days after expiration of the time for filing briefs." Mr. McLean seconded the motion. Motion CARRIED.

Judge Smith suggested an amendment at lines 21-23 to strike "upon the" at line 21; strike "filing of briefs, or" and insert after the word "upon", "five days after" at line 22; and strike "filing," and insert "brief" on line 23. Justice Levine asked whether 3.2 applies in criminal cases. Not everyone agreed on this point. Judge Glaser indicated that it does because it is a rule of court and it applies to all rules. Mr. Kapsner indicated that Judge Smith's suggested amendment is very good and that if the Committee accepts it we can then delete lines 24-26.

Mr. Bucklin stated that Rule 3.2 was designed to speed up the motion process and to make it easier. Now we are adding more days to the procedure by allowing a five-day window. Should we be doing this? We're giving five additional days to ask for an oral hearing. Pat Brendel indicated that he believes that the provisions of this rule do not apply to rules that specifically outline procedures. He believes that specific rules supersede the rule of court. Mr. Brendel suggested that (b) of the alternative proposed Rule 3.2 be amended as follows: "The provisions of this rule shall not be construed to supersede the

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provisions of any of the other rules of civil or criminal procedure." This way we are not specifically excepting rules and are telling lawyers that Rule 3.2 does not necessarily wipe the slate clean, there may be other rules to consider. We should not make it specific because we'll leave some rules out. Judge Leclerc indicated that we have compounded the problem by striking "heard" in (a) because other rules require a hearing. For example, Rules 7(b), 12(d), 26, 27, 56(d), 59(d)(e), and 68(a). It was pointed out that the explanatory note would have to be rewritten because "heard" has been deleted.

Mr. Peterson indicated that we should leave the civil rules alone. He believes that the way Rule 3.2 is structured is good. If a time line is a problem, there is usually no problem in getting an extension. Mr. Kautzmann stated that the 3.2 type of motion practice does not lend itself for usage in criminal procedure and as such these motions are not used in the Federal system.

Mr. Kautzmann MOVED to amend Rule 3.2 to indicate that Rule 3.2 does not apply to criminal procedure. Motion died for the lack of a second.

Mr. Kapsher indicated that perhaps subsection (c) should be amended to state that one must file a brief before an oral hearing can be granted.

Mr. Peterson MOVED to delete lines 46-49 of the alternative proposed Rule 3.2 and to delete "failure to" on line 50; to delete lines 51-52 and to delete "motion to summary ruling" on line 53 and to approve the rest of the rule. In effect, the motion deletes subsection (b) and subsection (c) only deals with the filing of a brief. The Committee felt that the motion should be broken up for the vote. Therefore, Mr. Peterson MOVED the amendments to subsection (c) deleting "failure to" on line 50 and deleting lines 51-52 and deleting "motion to summary ruling" on line 53. Mr. Lamb seconded the motion. Judge Glaser asked whether the amendment included on line 29 the phrase "If any party who has timely served and filed a brief" and the answer was yes. Motion CARRIED. Judge Leclerc voted no and requested that his vote be recorded in the minutes.

Mr. Heinley MOVED to delete subsection (b) from the alternative proposed Rule 3.2, NDROC. Mr. Kapsner seconded the motion. Judge Glaser presented the question of whether Rule 3.2 controls in case of any conflict. That issue needs to be resolved. Judge


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Glaser would like to add a provision to Rule 3.2 which indicates that Rule 3.2 controls in cases of conflict. Mr. Kautzmann indicated that rules in conflict with Rule 3.2 would control. Mr. Bucklin pointed out that if we did not want the criminal rules included in the 3.2 motion practice then we would have to amend Civil Rule 7 in order to get it out of the Rules of Court. Mr. Peterson requested staff to go through the civil rules and to pull the rules that address briefs, hearings and time lines and to do it also for the criminal rules. Judge Smith stated that Rule 3.2 is the general rule and that the only differences with specific rules deal with time lines and the matters that are submitted. There is really no large conflict here. Rule 3.2 is intended to govern general motion practice.

Mr. Peterson MOVED a substitute motion that staff review the Rules of Civil Procedure that conflict with 3.2 in briefing schedules, hearing requests, time lines and to include reviewing the criminal rules also and to report back to the Committee. Mr. Kautzmann seconded the motion. Motion CARRIED.

Mr. Kapsner indicated that we should approve what we have before us now because it's much better than the current rule and we can address other problems at a later date. Mr. Kautzmann did not feel that 3.2 should apply in criminal cases because of the fact that the defendant has to be present at all stages of the proceeding.

Mr. Kapsner MOVED to adopt Rule 3.2 as amended without subsection (b) of the alternative rule proposal. Mr. Peterson seconded the motion. Motion CARRIED. Mr. Kautzmann and Judge Leclerc voted no and requested that their votes be recorded in the minutes. Judge Leclerc requested a copy of Rule 3.2 as passed by the Committee.

Mr. Kautzmann MOVED that Rule 3.2 not apply in criminal proceedings. Judge Glaser MOVED to table until staff has had a chance to research the civil and criminal rules. Mr. McLean seconded the motion. Motion CARRIED.

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


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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 who has timely served and filed a brief requests the taking of testimony or oral argument on the motion. If any party who has timely served and filed a brief requests the taking of testimony or oral argument, 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. The court, in its discretion,may require the taking of testimony or oral argument and may allow or require testimony on the motion. Requests for oral argument or the taking of testimony must be made not later than 5 days after expiration of the time for filing briefs. Each motion must be heard at a time designated by the the court. The court,


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with the consent of all parties affected, may hear oral argument on any motion by telephonic conference.

(d) (b) Failure to File Briefs. Failure to file briefs or to request the taking of testimony or oral argument with 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) (c) Extension of Time. Extensions of time for filing briefs, or for continuance of the hearing on a motion, may 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) (d) 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.

EXPLANATORY NOTE TO RULE 23, NDRCrimP

Mr. Peterson MOVED to adopt the amended explanatory note to Rule 23, NDRCrimP, as set forth in Handout #19. Judge Leclerc seconded the motion. Motion CARRIED.

Rule 23 is adapted from Federal Rule 23 and governs trial by jury or by court in all criminal actions within this State. Rule 23 differs from the Federal Rule in that the Federal Rule permits only a written waiver. There is no right to trial by jury under Federal law in cases involving a petty offense. 18 U.S.C.A., Section 1, provides, "any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of $500 or both is a petty offense." (See Callan v. Wilson, 127 U.S. 540, 557, 8 S.Ct. 1301, 32 L.Ed. 223, 228 (1888); District of Columbia v. Clawans, 300 U.S. 617, 624, 57 S.Ct. 660, 81 L.Ed. 843,


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846 (1937); United States v. Barnett, 376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d 23, rehearing denied, 377 U.S. 973, 84 S.Ct. 1642, 12 L.Ed.2d 742 (1964); Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, rehearing denied, 392 U.S. 947, 88 S.Ct. 2270, 20 L.Ed.2d 1412 (1968). See also, State v. Heath, 177 N.W.2d 751 (N.D. 1970), dealing with criminal contempt. Criminal contempt is a crime in every essential respect; it is a violation of the law; punishable by fine, imprisonment or both. The Court went on to say, in Heath, at page 754, "Where the Legislature * * * has fixed the maximum penalty for the offense of criminal contempt at thirty days in jail and a $250 fine, we find such criminal contempt to be petty criminal contempt. Therefore, the defendants were not entitled to a jury trial as a matter of right.")

Subdivision (a), which provides for the waiver of jury trial by the defendant, embodies existing practice, the constitutionality of which has been upheld. (Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263 (1930).) See also Section 40-18-15 NDCC which provides that a jury waive in municipal court must be in writing. But Subdivision (a) does not give the defendant an absolute right to waive trial by jury. Before such a waiver may be granted, the defendant must have the approval of the court and consent of the prosecution. (Dixon v. United States, 292 F.2d 768 (D.C. Cir. 1961).) This position reflects the view that "Trial by jury is the norm and with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses." (Singer v. United States, 380 U.S. 24, 37-38, 85 S.Ct. 783, 791, 13 L.Ed.2d 630 (1965).)

Subdivision (b) was amended, effective January 1, 1988, to confirm in part and to supersede in part Section 29-17-12, NDCC.

Subdivision (b) implements the provisions of § 29-17-12, NDCC, by clarifying when a request for a jury of 12 in a Class A misdemeanor case must be made to be "timely." However, subdivision (b)


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supersedes the provisions of § 29-17-12, NDCC, which provides for a jury of 6 in all felony cases unless the defendant makes a timely demand for a jury of 12. Art. I, Section 13 of the N.D. Constitution provides that a person accused of a crime for which he may be confined for a period of more than one year has the right to trial by a jury of twelve. Subdivision (b) implements this constitutional right by providing that in felony cases a jury shall consist of twelve qualified jurors. See, State v. Hegg, 410 N.W.2d 152 (N.D. 1987).

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APPENDIX A TO RULE 8.2, NDROC

Judge Benny Graff requested that the Joint Procedure Committee amend Appendix A to Rule 8.2, NDROC, to add a request for financial information concerning the spouse's income. Proposed Appendix A adds the financial statement of a spouse's income to the form. Mr. Peterson MOVED to approve proposed Appendix A as contained in Handout #6. Judge Leclerc seconded the motion. Motion CARRIED.

RULE 32, NDRCrimP

Chuck Placek of the North Dakota Parole and Probation Office requested that Rule 32 be amended to provide for a uniform procedure in dealing with pre-sentence investigation reports. The Committee felt that this was a bureaucratic problem and that it should not be addressed by rule. These reports are generated by the Parole and Probation Office for the courts and they may simply keep additional copies for themselves. Judge Berning MOVED to kill the proposal. Judge Hilden seconded the motion. Motion CARRIED.

OLD APPEALS

The Supreme Court referred a memorandum from Lu Dunn, Clerk of the Supreme Court, to the Joint Procedure Committee regarding the problem of a notice of appeal being filed with the appellant failing to do anything more to perfect the appeal. The Supreme Court adopted an internal office practice to address this issue. Staff used similar language in drafting proposed amendments to Rules 13, and 42, NDRAppP. Rule 13 deals with sanctions and Rule 42 deals with voluntary dismissal. The Committee felt that this was


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not a sanction and should be treated as an involuntary dismissal. Judge Leclerc MOVED to approve proposed Rule 42, NDRAppP, on page 235 of the meeting materials. Mr. Brendel seconded the motion. Motion CARRIED.

RECOMMENDATION OF RULES AND EXPLANATORY NOTES TO THE SUPREME COURT

Staff reviewed all the rules and explanatory notes that have been approved by the Joint Procedure Committee in the last two years and also the action that was taken today. Mr. Kautzmann MOVED that the rules and explanatory notes approved by the Joint Procedure Committee since the last publication be recommended for adoption to the Supreme Court and that staff be given the authority to prepare explanatory notes to Rule 3.2, NDROC, and Rule 42, NDRAppP, to be submitted to the Supreme Court for adoption. Judge Leclerc seconded the motion. Motion CARRIED.

Staff was requested to send the rules and explanatory notes to the members of the Committee at the same time that they are submitted to the Court. The Committee then decided that rather than sending the material to every member that copies will only be sent to members who request the material. Judge Smith, Judge Leclerc and Mr. Bucklin indicated that they do in fact want a copy.

RULE 10(a), NDRAppP

The Committee received a letter from Marian Barbie and Judge Glaser concerning a problem with entire records being transmitted to the Court in an appellate case. Marian Barbie in her letter requested that an amendment be made to Rule 10, NDRAppP, providing for a partial record being sent in some cases. Staff indicated that currently Rule 10(g) allows for this; therefore, an amendment is not necessary. Staff also informed the Committee that the clerk's office has indicated that the Supreme Court prefers the entire record on appeal. The Committee discussed the problem and Justices Levine and Gierke will carry the Committee's concerns to the Court and will remind them of Rule 10(g), NDRAppP.


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RULE 43(d), NDRCivP

At the time that Rule 43, NDRCivP, was initially adopted it referred to a section of the code that addressed the oath form for witnesses. However, the reference to Section 31-01-22, NDCC, was deleted from the rule and therefore there is no standard oath form that is used throughout the courts in North Dakota. Pat Brendel MOVED that we add to Rule 43 the following: "The oath shall be administered as follows: Do you swear (affirm) that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth (so help you God)?" Mr. Peterson seconded the motion.

Mr. Bucklin pointed out that Section 31-01-22 is not superseded - that the code reviser has simply made a mistake and that this should be pointed out to the code reviser. Mr. Brendel withdrew his motion with the consent of a second. It was the consensus of the Committee that the code reviser be advised that Section 31-01-22, NDCC, has not been superseded by Rule 43 and that it be reprinted.

SERVICE BY FAX

The use of Fax machines is extremely popular and it may be the up and coming thing. Mr. Bucklin indicated that he is not against the use of Fax for service but indicated that the problem with it now is the quality of paper. Apparently, the State of Minnesota has conducted a study on this and it may be wise for us to review their study report before we proceed any further. It was the consensus of the Committee that staff check out the study results from Minnesota.

CHANGE OF JUDGE

The Committee discussed Judge Smith's recommendation regarding problems of requests for change of judge in proceedings requesting the exercise of the trial court's injunctive powers. Judge Glaser pointed out that the statute in Title 29 is not substantive - it is procedural and perhaps we should be drafting a rule which would supersede the statute. Judge Berning MOVED to table Judge Smith's recommendations. Mr. Brendel seconded the motion. Motion CARRIED.


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RULE 6.1, NDROC - CONTINUANCES

Judge Berning explained the problem in granting numerous continuances under Rule 6.1. The dockets are getting congested. He proposed limiting the number of continuances that a lawyer may receive in order to curb abuse of the rule. Judge Smith indicated that the judges may alleviate the problem by checking on the lawyers and pinpointing them down to specific dates. However, this has been tried in Judge Berning's district and has not worked. Mr. McLean indicated that he did not want it changed to be at the discretion of the judge. There are plenty of partners within his firm and if he was ordered to defer to a partner within his firm he would be uncomfortable with that because that person would not know the case and would not be thinking along the same lines as far as handling the case, etc.

Mr. Bucklin indicated that the problem seems to be that subsection (a) grants a right to a continuance. Judge Berning indicated he was not comfortable leaving it at the discretion of the judge. However, he would feel much better if we limited the number of continuances in a particular case. Pat Brendel indicated that this is predominantly a county court problem. He just tried a case charged in 1986 two weeks ago because of all the continuances that were granted.

Mr. McLean MOVED to add the following sentence to Rule 6.1(a): "However a party's entitlement to continuances cannot exceed two." Judge Berning seconded the motion. Motion FAILED.

Justice Gierke suggested the following language: "However a party will be granted no more than two continuances as a matter of right pursuant to this rule." Judge Smith indicated that the judges should be able to handle this without changing the rule. Judge Leclerc MOVED to table indefinitely. Mr. Bucklin seconded the motion. Motion CARRIED.

STATE V. JENSEN (RULE 35, NDRCrimP)

This case was distributed to the Committee members for information purposes.

The Supreme Court affirmed the district court which held that the motion for reduction of sentence was untimely and without merit. The motion was made some nine years after the sentence was imposed.


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AMERICAN JUDICATURE SOCIETY PROJECT

The Supreme Court referred information dealing with a project that the American Judicature Society had received funding for. The specific project is entitled JURY NOTETAKING AND QUESTION ASKING: A FIELD EXPERIMENT. Mr. Bucklin pointed out that this was not the kind of experiment to be done in North Dakota. Mr. Kautzmann MOVED to table indefinitely. Pat Brendel seconded the motion. Motion CARRIED.

INTERACTION OF TRIBAL AND STATE COURTS

The Committee received a letter from Judith Atkinson regarding the problem of state courts recognizing tribal court orders. Mr. Peterson MOVED to table indefinitely. Mr. Kautzmann seconded the motion. Motion CARRIED. The Committee indicated that this is a jurisdictional matter and not a procedural matter.

NEXT MEETING OF THE COMMITTEE

It was requested that the meeting schedule for the Joint Procedure Committee be made a year in advance. If that is unworkable, several Committee members indicated that they would like at least three months' notice. The Committee discussed having the meeting in September or October. Judge Leclerc invited the Committee to meet in Fargo. Mr. Lamb invited the Committee to meet in Grand Forks during Homecoming. However, the Committee felt that with all the other activities going on at the time of Homecoming that it would not be a good idea to meet at that particular time but maybe later in October. Mr. Lamb indicated he would contact staff concerning the meeting date.

ADJOURNMENT

The meeting was adjourned at 4:30 p.m. The next meeting will tentatively be held at the end of October 1989.

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Sandy Demianew