Joint Procedure Committee Meeting

Scheduled on Thursday, April 26, 1984 @ 10:00 AM

MINUTES OF MEETING

Joint Procedure Committee

April 26-27, 1984

CALL TO ORDER

The meeting was called to order at 9:00 a.m., April 26, 1984, by Justice Paul M. Sand, Chairman.

ATTENDANCE

Present

Hon. Eugene A. Burdick
Hon. Robert C. Heinley
Hon. Frank J. Kosanda
Hon. William S. Murray
Hon. James H. O'Keefe
Hon. Kirk Smith
Mr. Ward M. Kirby
Professor Larry Kraft
Ms. Beryl Levine
Mr. LeRoy A. Loder
Mr. Herbert L. Meschke
Mr. David L. Peterson
Mr. Raymond R. Rund
Mr. Dean Winkjer

Absent

Hon. Gerald G. Glaser
Hon. Lawrence A. Leclerc
Professor Robert Vogel
Mr. Leonard H. Bucklin
Mr. James L. Lamb

APPROVAL OF MINUTES

Judge Kosanda MOVED that minutes be amended on page 25 to indicate that Ms. Levine voted "no" on the adoption of the amendment to Rule 26, NDRCivP, for the same reason stated by Mr. Kirby, and that they be approved as amended. Ms. Levine seconded the motion. Motion CARRIED.

Rule 67, North Dakota Rules of Civil Procedure

Mr. Loder MOVED to adopt the proposed amendment to NDRCivP 67 with the following amendments:

Lines 7, 8 and 9: whether or not that party claims all or any part of the sum or thing. The party making the deposit shall file with the clerk the order permitting the deposit.

Mr. Kirby seconded the motion. Motion CARRIED.

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Judge Kosanda MOVED to further amend NDRCivP 67 as follows:

Lines 12, 13, 14 and 15: The money must be deposited in an interest-bearing account or invested in an interest-bearing instrument, or both, as directed by the court.

and to adopt NDRCivP 67 as amended. Judge Burdick seconded the motion. Motion CARRIED.

Deposit in Court

In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum or thing, whether or not that party claims all or any part of the sum or thing. The party making the deposit shall file with the clerk the order permitting the deposit. Money paid into court under this rule must be deposited and withdrawn in accordance with the provisions of Chapter 32-11, North Dakota Century Code. The money must be deposited in an interest-bearing account or invested in an interest-bearing instrument, or both, as directed by the court.

Rule 11, North Dakota Rules of Criminal Procedure

Judge Burdick MOVED to adopt the proposed amendments to NDRCrimP 11, as follows:

Line 2: Add "(1) In general."

Lines 6 through 13: (2) Conditional pleas. With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, he must be allowed to withdraw his plea.

Mr. Winkjer seconded the motion.

Mr. Peterson MOVED a substitute motion to adopt that language except to delete "With the approval of the court and the consent of the prosecuting attorney."

Ms. Levine seconded the motion. Motion LOST

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The question was on the motion of Judge Burdick to amend NDRCrimP 11. Motion CARRIED.

Judge Burdick MOVED to not adopt the proposed amendment to NDRCrimP 11, as shown in lines 127 through 129, regarding harmless error, but to show a cross-reference to Rule 52. Mr. Peterson seconded the motion. Motion CARRIED.

PLEAS

(a)Alternatives.

(1) In General. A defendant may plead not guilty or guilty. If a defendant refuses to plead or if a defendant corporation fails to appear, the court shall enter a Plea of not guilty.

(2) Conditional pleas. With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, he must be allowed to withdraw his plea.

(b) Advice to Defendant. The court shall not accept a plea of guilty without first, by addressing the defendant personally [except as provided in Rule 43(c)] in open court, informing him of and determining that he understands the following:

(1) The nature of the charge to which the plea is offered;

(2) The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered;

(3) That the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty;

(4) That if he pleads guilty there will not be a further trial of any kind, so that by pleading guilty he waives the right to a trial by jury or otherwise and the right to be confronted with the witnesses against him; and

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(5) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if necessary, one will be appointed to represent him, as provided in Rule 44, North Dakota Rules of Criminal Procedure.

(c) Insuring that the Plea is Voluntary. The court shall not accept a plea of guilty without first, by addressing the defendant personally [except as provided in Rule 43(c)] in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty results from prior discussions between the prosecuting attorney and the defendant or his attorney.

(d)Plea Agreement Procedure

(1) In General. The prosecuting attorney, the attorney for the defendant, or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty to a charged offense or to a lesser or related offense, the prosecuting attorney will move for dismissal of other charges, or will recommend or not oppose the imposition of a particular sentence, or will do both. The court shall not participate in any such discussion.

(2) Notice of Such Agreement. If a plea agreement has been reached by the parties, the court, on the record, shall require the disclosure of the agreement in open court or on a showing of good cause, in camera, at the time the plea is offered. Thereupon the court may accept or reject the agreement, or may defer its decision as to acceptance or rejection until receipt of a presentence report.

(3) Acceptance of Plea. If the court accepts the plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement or another disposition more favorable to the defendant than that provided for in the plea agreement.

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(4) Rejection of a Plea Agreement. If the court rejects the plea agreement, the court, on the record, shall inform the parties of this fact, advise the defendant personally in open court or on a showing of good cause, in camera, that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw his plea, and advise the defendant that if he persists in his guilty plea the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.

(5) Time of Plea Agreement Procedure. Except for good cause shown, notification to the court of the existence of a plea agreement shall be given at the arraignment or at such other time, prior to trial, as may be fixed by the court.

(6) Plea Discussions. If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review, any statement made in connection with and relevant to the plea discussion or any resulting agreement, plea, or judgment is not admissible in any criminal or civil action or administrative proceeding against the person who made the plea or offer. This rule does not apply to the introduction of voluntary and reliable statements made in court on the record in connection with any of the foregoing pleas or offers where offered for impeachment purposes or in a subsequent prosecution of the declarant for perjury or false statement, but only if in any case the statement was made under oath, on the record, and in the presence of counsel.

(e) Determining Accuracy of Plea. Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment or dispositional order upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.

(f) Record of Proceedings. A verbatim record of the proceedings at which the defendant enters a plea shall be made and, if there is a plea of guilty, the record shall include, without limitation, the court's advice to the defendant, the inquiry into the voluntariness of the plea including any plea agreement, and the inquiry into the accuracy of a guilty plea.

(g) Plea Put in by Defendant Unless Corporation. In no case shall a plea of guilty be put in by anyone except the defendant himself, in open court, unless the defendant is a corporation or the offense charged is not a felony, in which case it may be put in by counsel.

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RULE 12, North Dakota Rules of Criminal Procedure

Judge Burdick MOVED that we draft no amendment for our rule comparable to FRCrimP 12. Mr. Rund seconded the motion. Motion CARRIED.

RULE 12.2, North Dakota Rules of Criminal Procedure

Judge Smith MOVED to amend line 39, et seq., to read: "No testimony by the expert based upon such statement, and no other fruits of the statement be admitted in evidence against the accused in any criminal, civil, or administrative proceeding, except on an issue respecting mental condition on which the defendant has testified."

Ms. Levine seconded the motion.

Mr. Winkjer MOVED a substitute motion to defer consideration of NDRCrimP 12.2 until the next meeting. Judge Kosanda seconded the motion. Motion CARRIED.

RULE 23, North Dakota Rules of Criminal Procedure

Mr. Peterson MOVED that we do not amend our rule. Mr. Heinley seconded the motion. Motion CARRIED.

RULE 32, North Dakota Rules of Criminal Procedure

Judge Burdick MOVED that we adopt the proposed amendments to NDRCrimP 32, subject to style changes.

Mr. Peterson seconded the motion. Motion CARRIED.

SENTENCE AND JUDGMENT

(a) Sentence.

(1) Imposition of Sentence. Sentence shall be imposed or other authorized disposition made without unreasonable delay. Pending disposition the court may commit the defendant or continue or alter the bail. Before imposing sentence the court shall (a) determine that the defendant and his counsel have had the opportunity to read and discuss the presentence investigation report made available pursuant to subdivision (c)(3)(i) or summary thereof made available pursuant to subdivision (c)(3)(ii); (b) afford counsel an opportunity to speak on behalf of the defendant; and (c) address the defendant personally, except as provided by Rule 43, to determine whether he wishes to make a statement in his own behalf or

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wishes to present any information in mitigation of punishment or which would require the court to withhold pronouncement of judgment and sentence: if the defendant expresses a desire to do so, the court shall provide him with that opportunity. The prosecution must be given an opportunity to be heard on any matter material to the imposition of sentence.

(2) Notification of Right to Appeal. After imposing sentence in a case that has gone to trial on a plea of not guilty, the court shall advise the defendant of his right to appeal and of the right of the person who is unable to pay the costs of an appeal to apply for appointment of counsel for purposes of appeal. The court is under no duty to advise the defendant of any right of appeal after sentence is imposed following a plea of guilty.

(b)Judgment. A judgment of conviction must set forth the plea, the verdict, and the adjudication of sentence. If the defendant is found not guilty or for any reason is entitled to be discharged, judgment must be entered accordingly. The judgment must be signed by the judge and entered by the clerk.

(c)Presentence Investigation.

(1) When Made. The court may order a presentence investigation and report at any time. The report may not be submitted to the court or its contents disclosed unless the defendant has pleaded guilty, has been found guilty, or has consented.

(2) Report. The report of the presentence investigation may contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and any information required by the court.

(3) Disclosure.

(i) At a reasonable time before imposing sentence the court shall permit the defendant, and his counsel if he is so represented, to read the report of the presentence investigation unless in the

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opinion of the court the report contains information which if disclosed would be harmful to the defendant or other persons; and the court shall afford the defendant and his counsel an opportunity to comment on the report and, in the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in the presentence report.

(ii) If the court is of the view that there is information in the presentence report, disclosure of which would be harmful to the defendant or to other persons, the court in lieu of making the report or part thereof available shall state orally or in writing a summary of the factual information contained therein to be relied on in determining sentence, and shall give the defendant or his counsel an opportunity to comment thereon. The statement may be made to the parties in camera.

(iii) Any material which may be disclosed to the defendant and his counsel must also be disclosed to the prosecuting attorney.

(iv) If the comments of the defendant and his counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court, as to each matter controverted, shall make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of those findings and determinations must be appended to and accompany any copy of the presentence investigation report thereafter made available to the State Parole Board.

(v) Any copies of the presentence investigation report made available to the defendant or his counsel and the prosecuting attorney must be returned to the court immediately following the imposition of sentence or the granting of probation. Copies of the presentence investigation report may not be made by the defendant, his counsel, or the prosecuting attorney, unless the court, in its discretion, otherwise directs.

-9- (d)Plea Withdrawal.

(1) The court should allow the defendant to withdraw his plea of guilty whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice.

(2) A motion for withdrawal is timely if made with due diligence, considering the nature of the allegations therein, and is not necessarily barred because made subsequent to judgment or sentence.

(3) In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw his plea of guilty as a matter of right once the plea has been accepted by the court. Before sentence, the court in its discretion may allow the defendant to withdraw his plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea.

(e) Probation. After conviction of an offense, the defendant may be placed on probation as provided by law.

(f)Revocation of Probation where the Court Retains Jurisdiction Under the Law.

(1) Taking Into Custody. Upon probable cause to believe that a probationer has violated a condition of his probation, any State parole officer, or any peace officer upon direction of a State parole officer or upon direction or order of the court having jurisdiction may take the probationer into custody and thereafter shall forthwith bring him before the court which originally placed him upon probation for a hearing on the alleged violation. Costs incurred in bringing the probationer before the court shall be borne by the county wherein the probation was granted. The probationer may be admitted to bail pending the hearing.

(2) Hearing. The hearing shall be in open court with:

(i)The probationer present,

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(ii) A prior written notice of the alleged violation given to the probationer, and

(iii) Representation by retained or appointed counsel unless waived.

If the violation is contested, the prosecution must establish the violation by a preponderance of the evidence. Upon the hearing, the court, subject to limitations imposed by law, may revoke an order suspending a sentence or an order suspending the imposition of sentence, or continue probation on the same or different conditions, as the circumstances warrant. A record of the proceedings shall be made in such manner that it can be transcribed as needed.

Rule 35, North Dakota Rules of Criminal Procedure

Judge Smith MOVED to adopt the proposed amendments to NDRCrimP 35. Judge Kosanda seconded the motion. Motion CARRIED.

CORRECTION OR REDUCTION OF SENTENCE

(a) Correction of Sentence. The sentencing court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.

(b) The sentencing court may reduce a sentence within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by that court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court of the United States denying review of, or having the effect of upholding a judgment of conviction or probation revocation. Changing a sentence from a sentence of incarceration to a grant of probation constitutes a permissible reduction of sentence under this subdivision. Relief under this Rule may be granted by the court only upon motion of a party or its own motion and notice to the parties. If the sentencing court grants relief under this Rule, it shall state its reasons therefor in writing.

RECESS

The committee recessed to 1:15 p.m.

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CALL TO ORDER

The meeting was called to order at 1:15 p.m., April 26, 1984, at 1:15 p.m.

ROLL CALL

Present

Hon. Eugene A. Burdick
Hon. Robert C. Heinley
Hon. Frank J. Kosanda
Hon. James H. O'Keefe
Hon. Kirk Smith
Mr. Ward M. Kirby
Hon. William S. Murray (2:00 p.m.)
Professor Larry Kraft
Ms. Beryl Levine
Mr. LeRoy A. Loder
Mr. Herbert L. Meschke
Mr. David L. Peterson
Mr. Raymond R. Rund
Mr. Dean Winkjer

Absent

Hon. Gerald G. Glaser

Hon. Lawrence A. Leclerc
Professor Robert Vogel
Mr. Leonard H. Bucklin
Mr. James L. Lamb

CONTEMPT

Judge Burdick MOVED that staff attempt to revise the contempt statutes for possible Bill introduction and review at the next meeting at which the draft is available. Mr. Rund seconded the motion. Motion CARRIED.

RULE 46(d), North Dakota Rules of Criminal Procedure

RULE 9(b), North Dakota Rules of Appellate Procedure

Judge Smith MOVED that NDRCrimP 46(d) be amended as follows:

(d) Release Pending Appeal from a Judgment of Conviction. Application for release, modification of the conditions of release, or revocation of release after a notice of appeal from a judgment of conviction has been filed shall be made in the first instance in the trial court. If the trial court refuses release pending appeal, or imposes conditions of release, or revokes release, the court shall state in writing the reasons for the action taken. Thereafter, if an appeal is pending, a motion for release, or for modification of the conditions of release, or for revocation of release, pending review may be made to the supreme court or to a judge justice thereof. The motion shall

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be determined promptly upon such papers, affidavits, and portions of the record as the parties present and after reasonable notice. to the appellees The supreme court or a justice thereof may order the release of the appellant pending disposition of the motion.

and that NDRAppP 9(b) be amended as follows:

(b) Release Pending Appeal from a Judgment of Conviction. Application for release, modification of the conditions of release, or revocation of release, after a notice of appeal from a judgment of conviction has been filed shall be made in the first instance in the trial court. If the trial court refuses release pending appeal, or imposes conditions of release, or revokes release, the court shall state in writing the reasons for the action taken. Thereafter, if an appeal is pending, a motion for release, or for modification of the conditions of release, or for revocation of release, pending review may be made to the supreme court or to a justice thereof. The motion shall be determined promptly upon such papers, affidavits, and portions of the record as the parties present and after reasonable notice. to the appellees The supreme court or a justice thereof may order the release of the appellant pending disposition of the motion.

and that they be adopted as amended. Mr. Rund seconded the motion. Motion CARRIED.

RELEASE FROM CUSTODY

(a) Release Prior to Trial.

(1) Release in Non-capital Cases Prior to Trial.

(i) Any person charged with an offense, other than an offense punishable by death, shall, at his initial appearance before a magistrate, be ordered released pending trial on his personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the magistrate, unless the magistrate determines, in the exercise of his discretion, that release will not reasonably assure the appearance of the person as required. If that determination is made, the magistrate, either in lieu of or in addition to the above methods of release, shall impose the first of the following conditions of release which will reasonably assure the appearance of the person for trial or, if no single condition gives that assurance, two or more of the following conditions:

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(A) Place the person in the custody of a designated person or organization agreeing to supervise him;

(B) Place restrictions on the travel, association, or place of abode of the person during the period of release;

(C) Require the execution of an appearance bond in a specified amount and the deposit with the court, of cash or other security as directed in an amount not to exceed 10 per centum of the amount of the bond, which deposit shall be returned upon the performance of the conditions of release;

(D) Require the execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu thereof; or

(E) Impose any other conditions deemed reasonably necessary to assure appearance as required, including a condition requiring the return of the person to custody after specified hours.

(ii) In determining which conditions of release will reasonably secure appearance, the magistrate, on the basis of available information, shall take into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear voluntarily at court proceedings.

(iii) A magistrate authorizing the release of a person under this section shall issue an appropriate order containing a statement of the conditions imposed, if any, shall inform such person of the penalties applicable to violations of the conditions of his release and shall advise him that a warrant for his arrest will be issued immediately upon any violation.

(iv) A person for whom conditions of release are imposed and who after 48 hours from the time of the release hearing continues to be detained as a result of his inability to meet the conditions of release, shall, upon request, be entitled to have the conditions reviewed by the magistrate.

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(v) A magistrate ordering the release of a person on any condition specified in this section may at any time amend his order to impose additional or different conditions of release.

(vi) Information stated in, or offered in connection with, an order entered pursuant to this section need not conform to the rules pertaining to the admissibility of evidence in a court of law.

(vii) This section shall not be construed to prevent the disposition of any case or class of cases by forfeiture of collateral security where disposition is authorized by the court.

(2) Release in Capital Cases. A person who is charged with an offense punishable by death, shall be treated in accordance with the provisions of Subsection (a)(1) unless the court or judge has reason to believe that one or more conditions of release will not reasonably assure that the person will appear for hearing or trial. If the magistrate has reason to believe the person will not appear, the person may be ordered detained.

(b) Amendment of Conditions of Release by Other Magistrate. A person who is detained, or whose release on a condition requiring him to return to custody after specified hours is continued, after review of his application pursuant to Subsection (a)(1)(iv) or (a)(1)(v) by a magistrate other than a magistrate of the trial court in the jurisdiction in which the offense was committed, may apply to the latter magistrate to amend the order. Such motion shall be determined promptly.

(c) Release During Trial. A person released before trial shall continue on release during trial under the same terms and conditions as were previously imposed, unless the court determines that other terms and conditions or termination of release are necessary to assure his presence during the trial or to assure that his conduct will not obstruct the orderly and expeditious progress of the trial.

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revokes release, the court shall state in writing the reasons for the action taken. Thereafter, a motion for release, or for modification of the conditions of release, or for revocation of release, pending review may be made to the supreme court or to a justice thereof. The motion shall be determined promptly upon such papers, affidavits, and portions of the record as the parties shall present and after reasonable notice. The supreme court or a justice thereof may order the release of the appellant pending disposition of the motion.

(e) Release of Material Witnesses. If it appears by affidavit that the testimony of a person is material in any criminal proceeding and it is shown that it may become impracticable to secure his presence by subpoena, a magistrate may issue a warrant for his detention and impose conditions of release pursuant to Subsection (a)(1). A material witness shall not be detained because of inability to comply with any condition of release if the testimony of the witness can adequately be secured by deposition, and further detention is not necessary to prevent a failure of justice. Release may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to these Rules.

(f) Justification of Sureties. Every surety, except a corporate surety which is approved as provided by law, shall justify by affidavit and may be required to describe in the affidavit the property by which he proposes to justify and the encumbrances thereon, the number and amount of other bonds and undertakings for bail entered into by him and remaining undischarged and all his other liabilities. A bond shall not be approved unless the surety thereon appears to be qualified.

(g) Forfeiture.

(1) Declaration. If there is a breach of condition of a bond, the court shall declare a forfeiture of the bail.

(2) Setting Aside. The court may direct that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture.

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(3)Enforcement. If a forfeiture has not been set aside, the court on motion shall enter a judgment of default and execution may issue thereon. By entering into a bond the obligors submit to the jurisdiction of the district any appropriate court and irrevocably appoint the clerk of the court as their agent upon whom any papers affecting their liability may be served. Their liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the obligors at their respective last-known addresses.

(4) Remission. After entry of judgment, the court may remit it in whole or in part under the conditions applying to the setting aside of forfeiture in paragraph (2) of this Subdivision.

(h) Exoneration If the condition of the bond has been satisfied or the forfeiture thereof has been set aside or remitted, the court shall exonerate the obligor and release any bail. A surety may be exonerated by a deposit of cash in the amount of the bond or by a timely surrender of the defendant into custody.

(i) Supervision of Detention Pending Trial. The court ordering defendants or witnesses detained shall exercise supervision over the detention of those defendants and witnesses pending trial, for the purpose of eliminating all unnecessary detention.

RELEASE IN CRIMINAL CASES

(a)[Reserved for Future Use.]

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The motion shall be determined promptly upon such papers, affidavits, and portions of the record as the parties present and after reasonable notice. The supreme court or a justice thereof may order the release of the appellant pending disposition of the motion.

North Dakota Rules of Court 8.2(c) / NDCC § 14-05-22

Judge Burdick MOVED that reference to attorney fees in NDCC § 14-05-23 be listed as superseded in NDROC 8.2(c). Mr. Winkjer seconded the motion. Motion CARRIED.

NDCC § 28-01.1-03

Mr. Peterson MOVED to adopt a recommendation to the Supreme Court that Rule 8(a), NDRCivP, supersede NDCC § 28-01.1-03. Judge Burdick seconded the motion. Motion CARRIED.

ORIGINAL JURISDICTION PROCEEDINGS

Mr. Winkjer MOVED that the Joint Procedure Committee recommend that we not at this time proceed with the drafting of rules of procedure for original jurisdiction proceedings to the Supreme Court. Mr. Rund seconded the motion. Motion CARRIED.

Judge Burdick MOVED that we invite the Attorney General to submit specific proposals that he considers appropriate to deal with the problems he has submitted. Mr. Kirby seconded the motion. Motion CARRIED.

NEXT MEETING

Judge Burdick MOVED that the next meeting of the Joint Procedure Committee be held on June 21-22, 1984, to commence at 9:00 a.m. on the 21st. Judge Kosanda seconded the motion. Motion CARRIED.

North Dakota Rule of Court 3.2

Mr. Meschke MOVED to amend lines 3 and 11 of alternative 3 of the proposed amendment to NDROC 3.2 by deleting the word "instruments" and inserting the word "papers." Mr. Loder seconded the motion. Motion CARRIED.

Mr. Meschke MOVED to amend line 21 of the proposed amendment to NDROC 3.2 by inserting the words "heard, and" after the word "submitted." Judge Kosanda seconded the motion. Motion CARRIED.

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Mr. Loder MOVED to amend lines 27 through 30 to read as follows:

"The court, in its discretion, may require the taking of testimony or oral argument."

Judge Kosanda seconded the motion. Motion CARRIED.

Mr. Loder MOVED to adopt the amendments to NDROC 3.2. Judge Burdick seconded the motion. Motion CARRIED.

SUBMISSION ON BRIEFS AND FILING

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

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

(c) Submission on Briefs. Unless otherwise ordered by the court, upon serving and filing a motion, 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 brief within which to 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, and taken under advisement by the court, unless counsel for any party requests the taking of testimony or oral argument on the motion. If any party requests the taking of testimony or oral argument, the procedures under the rules for obtaining a hearing must be followed, unless otherwise ordered by the court. The court, in its discretion may require the taking of testimony or oral argument. Each motion must be heard at a time designated by the court. The court, with the consent of all parties affected, may hear oral argument on any motion by telephonic conference.

(d) Failure to File Briefs. Failure to file briefs or to request the taking of testimony or oral argument within the prescribed time subjects a motion

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

RULE 29, North Dakota Rules of Criminal Procedure

Judge Burdick MOVED to amend NDRCrimP 29 as follows:

(a) Motion Before Submission to Jury. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment, information, or complaint after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such theoffense or offenses. If a defendant's motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without having reserved the right.

(b) Motion at Close of All Evidence. Reserved for future use.Reservation of Decision on Motion. If a motion for judgment of acquittal is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict.

(c) Motion After Discharge of Jury. If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 7 days after the jury is discharged or the court within such the 7-day period may extend the time for making or renewing such the

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motion. If a verdict of guilty is returned the court on motion may set aside the verdict and enter judgment of acquittal. If no verdict is returned the court on motion may enter judgment of acquittal. Either motion may be made without having made a previous motion for a judgment of acquittal. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury.

Judge O'Keefe seconded the motion.

Mr. Peterson MOVED a substitute motion to adopt alternative 2, leaving the rule as it is. Judge Smith seconded the motion. Motion CARRIED.

Judge Burdick renewed his motion that the closing sentence of subdivision (c) read as follows: "Either motion may be made without having made a previous motion for a judgment of acquittal." Motion CARRIED.

Judge Burdick MOVED that the draft of NDRCrimP 29 as amended be approved. Judge O'Keefe seconded the motion. Motion LOST.

In accordance with these motions, the explanatory note to NDRCrimP 29 will now read:

Rule 29 is a variation of Rule 29, FRCrimP, but differs from the Federal Rule in several aspects. The first sentence of Subdivision (a) was deleted and the word "complaint" was added to conform with these Rules and existing practice within the State.

Subdivision (a) is intended to preserve the right of the defendant to offer evidence in his own behalf, if his motion for a judgment of acquittal is denied. The purpose of the second sentence of the Rule is to remove that doubt (which presently exists in a few Federal districts) as to whether the defendant is deemed to have rested his case if he moves for a directed verdict at the close of the prosecution's case.

The language of Subdivision (b) is eliminated and this subdivision is retained in blank for possible future use.

Subdivision (c) follows varies from the Federal Rule which was revised in 1966 to effect several changes in the post-trial procedure.

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RULE 46, NDRCrimP - Explanatory Note

Judge Burdick MOVED to amend the explanatory note to NDRCrimP 46 as follows:

Line 83-84: Delete "subsection" and insert "subdivision";

Line 93-95: After the first sentence insert "Subdivision(g)(3) was amended in ________________, effective ___________________________, to delete "district" court and make clear"

Line 97: Delete "the" and insert "an appropriate";

Line 99: Delete "Subsection" and insert "Subdivision";

Mr. Winkjer seconded the motion. Motion CARRIED.

Rule 46 is an adaptation of Rule 46, FRCrimP, as amended in 1972. The Rule is intended to revise the practices relating to bail to assure that all persons, regardless of their financial status, shall not needlessly be detained pending their appearance to answer charges, to be tried, to testify, or when pending appeal, when detention serves neither the ends of justice nor the public interest. Under the Rule emphasis on money bail as a means of securing defendant's appearance has been replaced by emphasis on non-pecuniary conditions for pretrial release. The element of financial resources, however, has not been discarded as a factor in determining bail.

The purpose of bail, traditionally, has been to insure that a person arrested on a criminal charge will appear at subsequent stages of the prosecution. The procedure under existing North Dakota law (Chapter 29-08, NDCC) prior to the adoption of the Rules was to require a bond, subject to forfeiture in the event of non-appearance which presumably acted as a deterrent to flight. In actual practice, this system of pretrial release has a number of harmful effects in that (1) it is dependent upon the defendant's financial ability to pay and thus discriminates against poor defendants; (2) it authorizes the defendant's bail bondsman to "hold the keys to the jailhouse door", in that he may revoke his bail and arrest or have the defendant arrested at his pleasure; and (3) it operates as an anomalous prelude to the liberal postconviction release practice which employs the deferred imposition of sentence, suspended sentence, probation, and parole. The policy of the A.B.A. Standards for Criminal Justice, Standards Relating to Pretrial Release, clearly favors release before trial unless countervailing conditions exist. [See A.B.A. Standards Relating to Pretrial Release, § 1.1 at page 24 (Approved Draft, 1968).]

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Subdivision (a) is adapted from the language of the Bail Reform Act of 1966 (P.L. 89-465, 80 Stat. 214), 18 U.S.C. § 3146.

Subdivision (b) provides a person with a right to reapply for a change of conditions of release to a magistrate other than the magistrate who imposed the original conditions.

Subdivision (c) provides for bail during trial. This provision continues existing North Dakota law (Section 29-08-08, N.D.C.C.) although it is considered an innovation to the Federal Rules. Under the provisions of Subdivision (c), the trial judge may continue the prior conditions of release or impose such additional conditions as are adequate to insure presence at trial or to insure that his conduct will not obstruct the orderly and expeditious progress of the trial. See Carbo v. United States, 288 F.2d 282 (9th Cir. 1961), where the defendant threatened witness during trial; also Bitter v. United States, 389 U.S. 15, 88 S.Ct. 6, 19 L.Ed.2d 15 (1967), where the judge committed to custody defendant who was late [37 minutes] for trial.

Subdivision (d) is adopted in the language of Rule 9(b), NDRAppP.

Subdivision (e) is adapted in the language of 18 U.S.C. § 3149 [the provisions of this statute, which had been contained in Rule 46(b), FRCrimP, were superseded in the 1972 revision]. The effect of the language of Subdivision (e) is to treat a material witness as an accused in accordance with the provisions of Subdivision (a). The provision of this Subdivision, which permits the taking of a deposition of a material witness, resolves in large measure the criticism of the Rule from those who maintain that the purpose of the material witness proceedings is to secure the protective custody of such witness, and a policy of release rather than detention has a tendency to stifle such purpose. The provisions of this Subdivision are necessary to prevent the greater injustice which results from the anomalous situation occurring when an innocent person is jailed, as it were, merely because of his status as a material witness, while the defendant is permitted to remain at large pending trial.

Subdivision (g)(1) follows existing North Dakota law (Section 29-08-21, NDCC) and requires that a forfeiture of the bond shall be declared if there is a breach of conditions on the bond. Although this provision has been held to be mandatory, Subdivision

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(g)(2) permits an excusal of the forfeiture if "justice does not require the enforcement of the forfeiture". "The forfeiture provision is designed to discourage violations of bail covenants and to deter defaults which create unnecessary delay and expense to the government [prosecution]." Smith v. United States, 357 F.2d 486, 490 (5th Cir. 1966).

Subdivision (9)(3) establishes a single procedure, copied from Rule 65.1, FRCivP, through which the court on motion can enforce forfeited bail bonds. Subdivision(g)(3) was amended in _______________, effective _______________, to delete "district" court and make clear that the obligors, by entering in a bond, subject themselves to jurisdiction of an appropriate court and appoint the clerk as their agent for service of any papers.

Subdivision (g)(4) provides that after default judgment, the court may remit in whole or in part under the conditions applying to setting aside a forfeiture. A determination for remission should be made only after judgment of default has been entered. (United States v. Miller, 323 F.2d 403 (6th Cir. 1963).]

Subdivision (h) provides that when the conditions of the bond have been satisfied or a forfeiture of the bond has been set aside or remitted, the surety or sureties are exonerated and any bail is released. The provision that the surety may surrender the defendant into custody, whether or not the case has been disposed of, is consistent with existing North Dakota law (Section 29-08-20, NDCC). This is done to avoid a breach and forfeiture when the surety has reason to anticipate that defendant will not appear.

Subdivision (i) provides that where the court is unable to release a defendant or witness under any of the provisions of this Rule, it shall be responsible to insure a swift disposition of the case with a minimum of preconviction detention.

RULE 4, North Dakota Rules of Appellate Procedure

Judge Burdick MOVED to amend the explanatory note to NDRAppP 4 as proposed.

This rule is derived from Rule 4, FRAppP; without substantial change. however, subdivision (a) differs from the federal rule as amended in 1979. Subdivision

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(a) omits reference to bankruptcy, or maritime claims and provides for a single period of 60 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 in , 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 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.

Judge Smith seconded the motion. Motion CARRIED.

This rule is derived from Rule 4, FRAppP; however, subdivision (a) differs from the federal rule as amended in 1979. Subdivision (a) provides for a single period of 60 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 in ___________________, 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.

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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.

RULE 7, North Dakota Rules of Civil Procedure

Judge Burdick MOVED to adopt the proposed amendments to the explanatory note to NDRCivP 7.

This rule is identical to Rule 7, FRCivP, except for the addition to subdivision (b) of a provision giving preference to a motion to vacate or modify a provisional remedy, which had been previously contained in Section 28-2806, NDRC 1943.

Subdivision (b)(3), adopted in ,effective , tracks the 1983 amendment to FRCivP 7(b) and requires that all motions must be signed in accordance with NDRCivP 11.

Judge Kosanda seconded the motion. Motion CARRIED.

Subdivision (b)(3), adopted in __________________, effective _________________, tracks the 1983 amendment to FRCivP 7(b) and requires that all motions must be signed in accordance with NDRCivP 11.

RULE 11, North Dakota Rules of Civil Procedure

Judge Kosanda MOVED to amend the explanatory note to NDRCivP 11 as proposed.

Rule 11, as amended in , effective , is substantially identical to Rule 11, FRCivP, FRCivP 11 as amended in 1983, except for the omission of a reference to abolishing an equity rule that does not apply to this State. An attorney is obligated to satisfy himself that there are good grounds for the pleadings he signs.

The rule, as amended, imposes a duty upon an attorney or an unrepresented party signing a pleading, motion, or other paper, to make a reasonable prefiling inquiry into the facts and the law to determine whether the pleading, motion, or paper is signed in compliance with the rule.

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If a pleading, motion, or other paper is signed in violation of this rule, the court retains the necessary flexibility to deal appropriately with the violation and tailor the sanction to the particular facts of the case. The rule is not intended to impose a requirement on the trial court to search the record for violations.

The appropriate sanction must be imposed upon the attorney, or the represented party, or both, and may include the payment of reasonable expenses, including a reasonable attorney's fee.

Judge Burdick seconded the motion. Motion CARRIED.

Rule 11, as amended in __________________,effective ________________, is substantially identical to FRCivP 11 as amended in 1983, except for the omission of a reference to abolishing an equity rule that does not apply to this State.

The appropriate sanction must be imposed upon the attorney, or the represented party, or both, and may include the payment of reasonable expenses, including a reasonable attorney's fee.

RULE 16, North Dakota Rules of Civil Procedure

Judge Burdick MOVED to amend the explanatory note to NDRCivP 16 as proposed

This rule, as amended in , effective , is derived from Rule 16, FRCivP, as amended in 1983, with several important additionsdeviations. First is the requirement that issue be joined before a conference is held. Issue is joined when the parties to an action reach the stage where one

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party asserts a fact in the pleadings and the other party denies the fact. Black's Law Dictionary 432 (Abridged 5th ed. 1983). The most notable second

The amended rule lists objectives of and subjects to be discussed at a pretrial conference if one is held. The rule changes existing procedure by requiring at least one of the attorneys for each party participating in a pretrial conference to have the authority to enter stipulations and make admissions on matters that may reasonably be anticipated to be discussed. If the pretrial conference is a final pretrial conference, which in some cases may be the only pretrial conference, it must be attended by the attorney who will conduct the trial and by any unrepresented party. The amended rule also expands the sanctions available for failure to comply with the rule.

Judge Kosanda seconded the motion. Motion CARRIED.

This rule, as amended in __________________, effective ________________,is derived from Rule 16, FRCivP, as amended in 1983, with several important deviations. First is the requirement that issue be joined before a conference is held. Issue is joined when the parties to an action reach the stage where one party asserts a fact in the pleadings and the other party denies the fact. Black's Law Dictionary 432 (Abridged 5th ed. 1983). The second change from Federal Rule 16 is that the court must hold a pretrial conference upon written request of a party, contrasted to complete discretion in the federal court. A third change from the federal rule is that a mandatory scheduling order is not required under the North Dakota rule as contrasted with the amended federal rule.

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the trial and by any unrepresented party. The amended rule also expands the sanctions available for failure to comply with the rule.

RULE 26, North Dakota Rules of Civil Procedure

Judge Burdick MOVED to amend the explanatory note to NDRCivP 26 as proposed.

Rule 26 is substantially identical to Rule 26, FRCivP, except for the provision in the first sentence of subdivision (f) that an action must be filed before a discovery conference is directed, rather than commenced as in the federal rule. In the federal system, an action is commenced by filing.

The rule, as amended in , effective , tracks the language of the 1983 amendments to the federal rule. The amended rule is intended to protect against excessive discovery and the evasion of reasonable discovery requests.

Subdivision (b) was amended to require the court to limit the frequency or extent of discovery if any of the conditions described in that subdivision are met.

Subdivision (g) was added to impose an affirmative duty on an attorney or unrepresented party to make a reasonable inquiry into the factual basis of a discovery request, response, or objection. Whether the inquiry is reasonable depends on the circumstances of the case and the rule is not intended to discourage or restrict necessary and legitimate discovery. This subdivision mandates that the court impose an appropriate sanction on an attorney or unrepresented party who signs a discovery request, response, or objection that violates the standards of subdivision (g).

Mr. Loder seconded the motion. Motion CARRIED.

The rule, as amended in ________________, effective __________________, tracks the language of the 1983 amendments to the federal rule. The amended rule is intended to protect against excessive discovery and the evasion of reasonable discovery requests.

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Subdivision (b) was amended to require the court to limit the frequency or extent of discovery if any of the conditions described in that subdivision are met.

RULE 52, North Dakota Rules of Civil Procedure

Judge Burdick MOVED to amend the explanatory note to NDRCivP 1 as proposed.

Committee action on the explanatory note to NDRCivP 52 was deferred.

RULE 1, North Dakota Rules of Civil Procedure

Judge Burdick MOVED to amend the explanatory note to NDRCivP 1 as proposed.

Rule 1 is an adaptation of Rule 1, FRCivP, with changes made only to conform to the court system of North Dakota. These rules have been made applicable by statute to most civil actions in county courts with increased jurisdiction [§ 27-07.1-21, NDCC] and county justice court [§ 33-01-10, NDCC] and probate and guardianship matters [§ 30.1-02-04, NDCC].

Judge Kosanda seconded the motion. Motion CARRIED.

Rule 1 is an adaptation of Rule 1, FRCivP, with changes made only to conform to the court system of North Dakota. These rules have been made applicable by statute to most civil actions in county courts [§ 27-07.1-21, NDCC] and probate and guardianship matters [§ 30.1-02-04, NDCC].

As will become readily apparent from a reading of these rules, they are the Federal Rules of Civil Procedure adapted, insofar as practicable, to state practice. These explanatory notes attempt to point out

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the deviations from the federal rules. Where there is no significant deviation, annotations to the federal rules may be useful, as the North Dakota Supreme Court has said in several cases. See, for example, Unemployment Compensation Division v. Bjornsrud, 261 N.W.2d 396, 398 (N.D. 1977).

"* * * when we adopted the Federal Rules of Civil Procedure we did so with knowledge of the interpretations placed upon them by the Federal courts, and although we are not compelled to follow these interpretations, they are highly persuasive and, in the interest of uniform interpretation, we should be guided by them."

RULE 34, North Dakota Rules of Appellate Procedure

Judge Burdick MOVED to amend the explanatory note to NDRAppP 34 as proposed.

This rule is derived from Rule 34, FRAppP. The time allowed for the appellant under the Federal Rule is extended from 30 minutes to 45 minutes because of his burden in presenting the initial statement of the facts and the case. Subdivision (b) was amended, effective July 1, 1981, to reduce the time allowed for oral argument for the appellant from 45 minutes to 30 minutes and for the appellee from 30 minutes to 20 minutes.

Ms. Levine seconded the motion. Motion CARRIED.

This rule is derived from Rule 34, FRAppP. Subdivision (b) was amended, effective July 1, 1981, to reduce the time allowed for oral argument for the appellant from 45 minutes to 30 minutes and for the appellee from 30 minutes to 20 minutes. Argument on motions is limited to 15 minutes on each side. It is contemplated these periods will be liberally extended upon a showing of good cause. In the case of multiple appellants or appellees it is contemplated that each side must divide the time accorded, unless additional time has been requested and granted. The omission of subdivision (g) of the Federal Rule is not intended to prevent the use of any exhibits at oral argument.

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RECESS

Mr. Loder MOVED to recess to 9:00 a.m. April 27, 1984. Judge Burdick seconded the motion. Motion CARRIED.

The meeting scheduled for April 27, 1984 was canceled due to inclement weather.

____________________________________
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