Joint Procedure Committee Meeting
Scheduled on Thursday, April 28, 1994 @ 10:00 AM
MINUTES OF MEETING
Joint Procedure Committee
April 28-29, 1994
TABLE OF CONTENTS
Preliminary Matters 2
Approval of Minutes 2
Rule 10, N.D.R.App.P.-The Record on Appeal 3
Record of Votes from Committee Meetings 4
Rule 46, N.D.R.Crim.P.-Release from Custody 4
Rule 37, N.D.R.Crim.P.-Appeal as of Right to District Court; How Taken 6
Rule 23, N.D.R.Crim.P.-Trial by Jury or by Court-Explanatory Note 7
Administrative Rule 27, Section 13(a)-Petition for Review by the Supreme Court 7
Expedited Appeal in Cases Involving Life Sustaining Medical
Treatment Decision-Making 7
Rule 11(d), N.D.R.Crim.P.-Status of Sentence Recommendation 8
Rule 11(g), N.D.R.Crim.P.-Authorization of Misdemeanant to Enter Guilty Plea Through Counsel 10
Rule 4(d), N.D.R.Civ.P.-Service in a Security Building 12
Rule 16, N.D.R.Crim.P.-Disclosure of Defendant's Witnesses 12
Rule 4, N.D.R.Civ.P. and Section 27-20-23, Uniform Juvenile Court Act, NDCC-Inconsistency Between Service Requirements 14
Rule 42, N.D.R.Civ.P.-Transfer and Consolidation of Cases 15
Rule 3.2, NDROC, Rule 6, N.D.R.Civ.P., Rule 45,
N.D.R.Crim.P.-Motion Practice 15
Rule 1.1, NDROC-Scope 17
Rules 3, 16, and 40, N.D.R.Civ.P.-Judicial Case Management and Court Initiated Scheduling 17
Rule 3, N.D.R.Crim.P.-Verification of Criminal Complaint 20
Rule 41, N.D.R.Crim.P.-Search Warrants Via Facsimile Transmission 22
Rule 23, N.D.R.Civ.P.-Class Actions Rule 23
Administrative Rule 13(8)-Removal of Matters from Referee to District Court Judge 23
Rule 59(f), N.D.R.Civ.P.-Memorandum of Decision on Motion for New Trial 24
CALL TO ORDER
The meeting was called to order at approximately 9:00 a.m., April 28, 1994, by Justice Beryl Levine, Chairperson.
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ATTENDANCE
Present:
Justice Beryl J. Levine
Honorable Wallace D. Berning
Honorable Bruce E. Bohlman
Honorable Gail Hagerty
Honorable Ronald L. Hilden
Honorable Maurice R. Hunke
Honorable Lawrence A. Leclerc
Honorable James H. O'Keefe
Honorable Kirk Smith (4/28/94 only)
Honorable James A. Wright
Professor Larry Kraft
Mr. Michael R. Hoffman
Mr. John C. Kapsner
Mr. James L. Lamb
Mr. Ronald H. McLean
Mr. James T. Odegard
Ms. Cathy Howe Schmitz (4/28/94 only)
Absent:
Ms. Patricia R. Ellingson
Mr. Robert C. Heinley
Honorable Dwight C. H. Kautzmann
Staff:
Mr. Gerhard Raedeke
PRELIMINARY MATTERS
Justice Levine welcomed two new members to the Committee, Judge Maurice Hunke and Mr. Michael Hoffman.
The Committee was informed of upcoming meeting dates: September 29-30, 1994, in Bismarck, January 26-27, 1995, at the Radisson in Fargo, and April 27-28, 1995, at the Bismarck Radisson.
Staff inquired as to whether it is necessary to supply Committee members with a new three-ring binder for each meeting. The Committee agreed that material for upcoming meetings could be sent without a binder as long as the material is three-hole punched and sent in one shipment.
APPROVAL OF MINUTES (PAGES 1-26 OF THE AGENDA MATERIAL)
Mr. Odegard MOVED that the minutes of the Joint Procedure Committee meeting of January 27-28, 1994, be approved as submitted. The motion was seconded and CARRIED.
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Justice Levine inquired as to whether all members of the Committee have a copy of the North Dakota Court Rules. Members who do not have a copy should be furnished with a copy in gratitude for their service on the Committee. Judge Leclerc offered to furnish Committee members who need a copy of the North Dakota Court Rules with a copy as his district has more than needed.
RULE 10, N.D.R.App.P. - THE RECORD ON APPEAL (PAGES 27-32 OF THE AGENDA MATERIAL)
The Committee considered Judge Leclerc's proposal to amend Rule 10. The proposal would allow secretaries to prepare transcripts from electronic recordings even if the secretary was not present when the hearing was recorded.
Committee members commented that transcripts prepared from electronic recordings are more accurate than transcripts prepared by a stenographer. Other Committee members disagreed.
Committee members disagreed as to the need to have the person who prepares the transcript present at the hearing. Some members commented that someone must take minutes and index the tape in order to identify who is speaking. Ideally, that person should prepare the transcript. The only way the preparer of the transcript will know that the recording is accurate is if they were present at the hearing.
Several Committee members stated that they liked the proposal because it accommodates variances in practice. Members stated that the rule needs to be amended to recognize the existing use of electronic recordings. It should not be necessary to pay a court reporter $35,000 to push a button on a recording machine. Secretaries should be allowed to prepare transcripts from a recording without being present at the hearing.
Concern was expressed that deleting the phrase "court reporter" would eliminate and decertify court reporters. Other Committee members said that the phrase "person preparing the transcript" includes court reporters.
Committee members said that attorneys should be informed as to who is preparing the transcript and by what means the transcript is prepared. Attorneys should be advised if the transcript was prepared by an outside typing service, or if the person preparing the transcript was not present at the hearing. Other Committee members suggested that attorneys will discover and indicate any inaccuracies with the transcript.
The Committee then discussed who the order for transcript should be served upon and the mechanics of service. Discussion followed as to 1) whether the order should be served
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upon the clerk, with the clerk then being responsible for transmitting the order to the person preparing the transcript; or 2) whether the order should be served directly on the person preparing the transcript. Committee members commented that lawyers will not know who is preparing the transcript.
Judge Hagerty MOVED that the following language be added after the words "of the appeal" on line 21, page 28: "Within three days of filing, the Clerk shall transmit the order to the person who will prepare the transcript." The motion was seconded, and discussion followed.
The Committee discussed the possibility of requiring the order for transcript to be served on the court administrator rather than filed with the clerk. Members commented that this would bring a third person into the process. Committee members thought that the clerk should be responsible for transmitting the order to the person who will prepare the transcript. Already, the clerk receives the notice of appeal and is responsible for transmitting the record to the supreme court. Motion unanimously CARRIED.
Judge Hagerty MOVED adoption of Rule 10 with the additional change made by the Committee. The motion was seconded. Motion CARRIED.
RECORD OF VOTES FROM COMMITTEE MEETINGS
The Committee discussed whether "no" votes should be recorded. It was noted that at previous meetings, the Committee had decided not to record "no" votes. A vote was taken and the Committee again rejected the idea of recording who made "no" votes. Committee members are responsible for remembering how they voted. However, the consensus of the Committee was that when a vote is unanimous, the unanimity of the vote should be noted. The count should also be noted in the minutes when the vote is close.
RULE 46, N.D.R.Crim.P. - RELEASE FROM CUSTODY (PAGES 33-42 OF THE AGENDA MATERIAL)
Mr. Kapsner MOVED to reopen Rule 46 for consideration by the Committee. The motion was seconded by Judge Hilden and CARRIED. At the last meeting, the Committee defeated a proposal to amend Rule 46 that would have allowed conditions to be imposed upon pretrial release to protect the safety of any other person and the community.
Staff explained that the proposal on pages 34 through 38 was suggested by several Committee members after the last meeting. The proposal is different than the proposal previously rejected by the Committee. Instead of making the safety of any
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other person and the community the standard for determining whether conditions should be imposed upon release, the alternative proposal makes the safety of any other person and the community a factor to consider in determining which conditions upon release will reasonably assure the appearance of the accused. The conditions that are authorized to be imposed upon release are from the Bail Reform Act of 1984, 18 U.S.C. § 3142(c).
Committee members commented that the accused will be less likely to appear if the accused is dangerous to the community. Other members suggested that in order to find that the accused is dangerous, there must be a finding that the person committed the crime for which he or she is accused. Such a finding conflicts with the presumption of innocence.
The Committee noted that Rule 46 already requires the magistrate to consider the weight of evidence against the person in determining which conditions of release will reasonably assure the appearance of the accused. Committee members argued that considering the weight of evidence against the person does not conflict with the presumption of innocence, because that is exactly what is done when the decision is made to arrest the accused. The presumption of innocence refers to the burden of proof at trial.
Committee members also commented that the proposal only recognizes reality. Currently, judges are imposing conditions designed to protect the safety of any other person and the community. The current rule provides that a judge may "[i]mpose any other conditions deemed reasonably necessary to assure appearance as required."
Committee members were concerned that if Rule 46 is not amended to show on its face that the safety of any other person and the community is being considered by the judiciary, the Legislature will pass a statute similar to the federal preventative detention statute. Such a statute would be unconstitutional in North Dakota. Declaring a statute unconstitutional that protects the safety of any other person and the community will make the judiciary look soft on crime. The proposal would only expressly authorize what is already being done for public relations purposes.
Some judge members did not want the conditions to be listed expressly. Concern was expressed that if the conditions are expressly listed, judges will put all the conditions in every bail order to avoid taking heat if something happens and the conditions had not been authorized. Other judges said they would only impose the conditions that were appropriate, and the accused would be released without conditions unless it is shown that conditions need to be imposed upon release.
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Judge Smith MOVED to strike all of the proposed conditions except the condition found in paragraph "E" on page 35. The motion was seconded by Judge Leclerc. Motion FAILED.
Committee members commented that the conditions need to be expressly stated to dispel the perception that the judiciary has failed. Other Committee members commented that the perception that the judiciary has failed will never be able to be dispelled without preventative detention. The Attorney General needs to seek a constitutional amendment so that preventative detention can be authorized, if the concern is really the safety of any other person and the community.
Judge Leclerc MOVED that the proposed conditions on pages 34-36 be considered separately from the proposed language on page 37. Judge Leclerc further MOVED that the proposed conditions on pages 34-36 be struck. The motion was seconded. Motion FAILED.
Committee members commented that the rule should not be amended just because the Legislature may do something worse. The conditions are geared toward rehabilitation. They are conditions of probation and are not addressed to whether the person will appear.
Ms. Schmitz MOVED to adopt all the language containing the conditions set forth on pages 34-36. The motion was seconded by Mr. Odegard. Judge Berning MOVED to amend Ms. Schmitz's motion by deleting the words "pretrial service agency" on line 39. The motion as amended CARRIED 9 to 6.
Ms. Schmitz MOVED the adoption of the language on lines 83 through 85, page 37. The motion was seconded by Mr. Odegard and CARRIED.
Ms. Schmitz MOVED the adoption of the Explanatory Note on pages 39-42. The motion was seconded and unanimously CARRIED.
RULE 37, N.D.R.Crim.P. - APPEAL AS OF RIGHT TO DISTRICT COURT; HOW TAKEN -EXPLANATORY NOTE (PAGES 43-51 OF THE AGENDA MATERIAL)
Staff presented the proposed changes to the explanatory note with additional deletions. The Committee had previously approved the proposed amendment to Rule 37 which deleted references to county court.
It was suggested that lines 42 through 45 and lines 46 through 57 should also be eliminated; except the first portion of line 46 should be saved by placing a period after 4(b). Committee members commented that whenever it is questionable whether material should be included in the explanatory note, the material should be eliminated.
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Judge Leclerc MOVED to approve the explanatory note with the additional changes as proposed. Mr. Lamb seconded. The motion unanimously CARRIED.
RULE 23, N.D.R.Crim.P. - TRIAL BY JURY OR BY COURT - EXPLANATORY NOTE (PAGES 52-57 OF THE AGENDA MATERIAL)
The Committee considered a proposal to amend the explanatory note. Staff explained that the explanatory note is misleading as to the right to trial by jury. Professor Kraft MOVED to approve the explanatory note as proposed. The motion was seconded by Mr. Lamb and unanimously CARRIED.
ADMINISTRATIVE RULE 27, SECTION 13(a) - PETITION FOR REVIEW BY THE SUPREME COURT (PAGES 58-61 OF THE AGENDA MATERIAL)
Pursuant to the Supreme Court's request, the Committee reviewed Section 13 of Administrative Rule 27. Currently the rule provides fourteen days for filing a petition for review from a judgment or order of the Court of Appeals, but only seven days is allowed for filing a petition for review after final disposition of a petition for rehearing by the Court of Appeals. Judge Smith MOVED to approve the proposed amendment which would allow fourteen days for filing all petitions for review. The motion was seconded by Judge Leclerc and unanimously CARRIED.
EXPEDITED APPEAL IN CASES INVOLVING LIFE SUSTAINING MEDICAL TREATMENT DECISION-MAKING - (PAGES 62-67 OF THE AGENDA MATERIAL)
The Committee considered the North Dakota Consensus Council's request for a procedural rule for expedited appeal in cases involving life sustaining medical treatment decision-making. The Committee noted that North Dakota's Constitution, Article VI, § 6 provides that appeal is allowed only as provided by law, and that case law indicates that the right to appeal must be provided by statute.
Committee members suggested that there is not a need for expedited appeal procedures. The issue cannot arise until someone has been in a persistent vegetative state. Diagnosis cannot be made until someone has been in that condition for three months. The availability of extraordinary writs is sufficient.
Committee members stated that if expedited appeal is desired, the Legislature should enact statutes providing for expedited appeal. The need for expedited appeal arises so seldom that an appeal procedure should not be provided for such a small number of cases.
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Committee members commented that nutrition, hydration, and life-sustaining medical treatment questions are internally inconsistent within the legislation currently in effect. Nutrition/hydration is not a medical treatment that can be withheld according to statute. Other legislation provides for durable power of attorney allowing one to decline nutrition/hydration treatment.
Committee members commented that the extraordinary writ provisions are not very clear. Committee members commented that an assumption is being made that there are writs and that people know how to get the writs. The issue of extraordinary writs should be examined further by the Committee. Other members commented that if you have a procedure for expedited appeals, the Supreme Court will spend lots of time determining whether the case is appropriate for expedited appeal.
Judge Leclerc MOVED to reject the request by the Consensus Council for the development of a procedural rule for expedited appeal in life-sustaining medical treatment decision-making cases. The motion was seconded and CARRIED.
RULE 11(d), N.D.R.Crim.P. - STATUS OF SENTENCE RECOMMENDATION. (PAGES 68-72 OF THE AGENDA MATERIAL)
The Committee discussed a request from Judge O'Keefe to amend Rule 11(d), N.D.R.Crim.P., so that the status of a plea agreement and a sentence recommendation is the same. Under the proposal, if the judge does not follow the sentence recommendation, the guilty plea may be withdrawn as is done with a plea agreement.
Concern was expressed that a defendant may not understand that the sentencing judge is not required to follow the recommendation of the prosecutor. Even when it is explained to one's client, that the judge is not bound by a recommendation, the client will ask his or her attorney what the judge is likely to do in regard to a recommendation. The attorney will explain that in about ninety percent of cases, the judge will follow the recommendation. The danger is that there is always a chance that the judge may not accept the recommendation. The client and defense attorney are always on pins and needles until the judge says that he or she will accept the recommendation. Such a system is unfair to the defendant and the lawyer. It is unfair to make a defendant enter a plea in reliance upon what the judge normally does, but without a guarantee that the sentence recommendation will be followed.
Committee members commented that the problem is not with the rules, but the explanation as to the status of the sentence recommendation that is given to the defendant. Other Committee members commented that the distinction between a plea agreement and a sentence recommendation is a subtle distinction
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that a defendant often does not understand. Other members countered by saying that the proposal would tie the hands of judges and the prosecution. It should be up to the defense to explain the status of a sentence recommendation to the defendant.
Committee members commented that under the proposal there would be no such thing as an open plea. The proposal would make the attorney the sentencing judge. Judges commented that they look to the recommendation of the state's attorney, but that they do not want to be bound by the state's attorney's recommendation as with a plea agreement.
Other Committee members commented that if you give recommendations the same status as a plea agreement, you inhibit the prosecution's freedom of action. Currently, the prosecution will make recommendations in order to get a plea, even though the prosecution hopes the recommendation will not be accepted. If recommendations are eliminated agreements may not be reached. Committee members suggested that it is very difficult to reach agreements and that sentence recommendations are the vehicle that allows agreements to be reached that would not be reached otherwise.
The customary practice of various courts in the state was discussed. In Burleigh County plea agreements are seldom used, while in the East Central Judicial District plea agreements are used in ninety percent of the cases. There are judges that will not accept plea agreements, but will accept sentence recommendations.
Some Committee members commented that sentence recommendations are a problem. Judges think too much about the heinousness of the crime and not about whether the prosecution can prove its case. The prosecution also has to weigh the evidence when deciding whether to give a sentence recommendation. The defendant should be given the chance to withdraw his or her plea and require the prosecution to prove its case, because the judge and the prosecution may not be on the same wavelength regarding the recommendation and appropriate sentence.
Judge Hagerty MOVED to reject the proposal in the material on pages 70 through 72. The motion was seconded and CARRIED by a vote of 8 to 7.
The Committee reviewed the advisement given under Rule 11(e)(2), Fed.R.Crim.P. The federal rule requires the court to advise the defendant that the defendant does not have the right to withdraw the plea if the court does not accept the recommendation.
Committee members commented that the court should assume some responsibility for advising the defendant that the court is not bound by a sentence recommendation in order to make
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sure that the defendant is aware that the court is not bound and to create a record. Currently, the trial court is not required to specifically advise the defendant that the court is not bound by the recommendation. The knowledge on the part of the defendant only needs to be reflected from the whole record.
Justice Levine invited Committee members to write staff a letter suggesting an alternative proposal for amendment of Rule 11(d).
RULE 11(g), N.D.R.Crim.P. - AUTHORIZATION OF MISDEMEANANT TO ENTER GUILTY PLEA THROUGH COUNSEL (PAGES 73-103 OF AGENDA MATERIAL)
Staff explained that the Supreme Court has referred Rule 11(g) to the Committee for study. Rule 11(g) authorizes a misdemeanant to enter a guilty plea through counsel. The Court is concerned whether Rule 11(g) complies with the constitutional requirement that a guilty plea must be shown on the record to have been entered knowingly and voluntarily. The Committee next considered a proposal to amend Rule 11(g) to require a petition to enter a plea of guilty for the purpose of ensuring that the plea is being made knowingly and voluntarily.
Committee members suggested that Rule 43(c), N.D.R.Crim.P., already requires that the defendant sign a written form in order to plead guilty through counsel. The Indigent Defense Commission has drafted forms that establish the necessary record. Committee members also commented that most judges will not accept a Rule 43 plea of guilty unless the form contains a specific waiver of constitutional rights.
Other Committee members noted that there is a problem because Rule 43 only requires that the defendant consent in writing to the entry of a plea of guilty through counsel. Rule 43 does not require an advisement of the constitutional rights that the defendant is waiving by pleading guilty.
Committee members questioned whether the same safeguards regarding the establishment of a knowing and voluntary waiver of constitutional rights are required for misdemeanors as with felonies. Staff explained that other states have held that guilty pleas in misdemeanor cases must also be shown to have been made knowingly and voluntarily. In misdemeanor cases, just as in felony cases, the defendant is waiving constitutional rights. However, courts have also recognized that the degree of caution needed increases with the gravity of the offense charged.
The misdemeanor petition to enter a plea of guilty on page 101 of the material was taken from the Minnesota Rules of Criminal Procedure. Minnesota allows a misdemeanor defendant to
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plead guilty through counsel if a misdemeanor petition to enter a plea of guilty is used.
Committee members questioned whether the misdemeanor petition to enter a plea of guilty should be required in Rule 43(c) rather than in Rule 11(g). The Federal Rules of Criminal Procedure do not contain the substance of North Dakota Rule 11(g). However, other states have required a misdemeanor petition to enter a plea of guilty in Rule 11 because it is concerned with the advisement that must be given to the defendant.
Committee members thought that Rule 43 and Rule 11(g) need to be tied together. Judge Leclerc MOVED that staff draft an amendment to Rule 43 that requires a relation back to Rule 11 in terms of waiver and requires the use of the form provided on page 101, and that such form be the official form. There was no second to the motion, motion FAILED.
Judge Wright MOVED to adopt Rule 11(g) as amended. The motion was seconded by Judge Smith. The Committee discussed the language in proposed Rule 11(g). The Committee had concerns that the language seems to indicate that a plea of guilty must be put in by counsel or personally by the defendant. Currently, defendants are allowed to plead guilty without appearing personally, or pleading guilty through counsel, by forfeiture of bond. Committee members also noted that Minnesota's misdemeanor petition to enter a plea of guilty does not require the appearance of counsel. Judge Wright withdrew his motion, seconded by Judge Smith.
Committee members expressed concern that counsel needs to be present if the defendant is not present, so that counsel can be interrogated as to defendant's understanding of the constitutional rights being waived. It was noted that even if a misdemeanor petition to enter a plea of guilty is signed, the court should not be required to accept the plea of guilty. The court should still have discretion to require the personal appearance of the defendant to make sure that the plea is being made knowingly and voluntarily.
Mr. Hoffman MOVED to amend the proposed language on page 91, starting on line 9 as follows:
In a non-felony case, if the defendant's counsel pleads guilty pursuant to Rule 43 on behalf of the defendant, a petition to enter a plea of guilty as provided in Appendix Form 17 must be signed by the defendant and filed with the court.
The motion was seconded by Judge Hagerty. The Committee then discussed a possible change on lines 8 and 9 as follows:
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charged is not a felony, in which case it may be put in by the defendant's counsel.
It was suggested that the changes would make the proposed form an page 101 a Rule 43 form. Judge Hunke suggested that staff draft a rule with the discussed changes for review by the Committee at the next meeting. The proposed petition to enter a plea of guilty will need to be changed to provide for waiver of counsel, if the form is also going to be used for guilty pleas when counsel does not appear on behalf of the defendant. The Committee instructed that the explanatory note to Rule 43 should refer back to Rule 11. Mr. Hoffman withdrew his motion. The Committee is going to review the suggested changes at the next meeting.
RULE 4(d), N.D.R.Civ.P. - SERVICE IN A SECURITY BUILDING (PAGES 104-114 OF THE AGENDA MATERIAL)
The Committee reviewed a request to amend Rule 4 to make it easier to achieve personal service on a resident of a security building. The proposed change would allow service by leaving a copy with the clerk or manager of the building. North Dakota's current rule only allows leaving the papers with a person "residing therein." The Committee felt that the change was not necessary as personal service can be accomplished easily enough by mail. Judge Leclerc MOVED that the Committee reject the proposed amendment to the rule. The motion was seconded by Mr. Kapsner and unanimously CARRIED.
RULE 16, N.D.R.Crim.P. - DISCLOSURE OF DEFENDANT'S WITNESSES(PAGES 115-135 OF THE AGENDA MATERIAL)
The Committee reviewed a proposal from the Attorney General's Office to amend Rule 16. The proposal would require disclosure of defense witnesses. The proposal was originally presented as a bill in the 1993 legislative session. It was passed by the House of Representatives, but referred to this Committee by the Senate Judiciary Committee.
Staff outlined the Attorney General's contentions. The Attorney General's office is contending that the amendment would promote fairness by preventing surprise and tactical victories. The Attorney General's office also notes that requiring disclosure coincides with the United States Supreme Court's decision in the case of Taylor v. Illinois, 484 U.S. 400 (1988). In Taylor, the United States Supreme Court upheld the preclusion of defense witnesses as a sanction for an intentional failure to disclose for the purpose of obtaining an unfair tactical advantage. The Attorney General's office contends that it is contradictory to say that a failure of the prosecution to disclose a witness will result in prejudicial error, but similar conduct by the defense should be sanctioned by rule.
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Committee members commented that the fairness concern is not the same in criminal cases as in civil cases. If fairness were the concern, the defendant would be required to testify. Committee members also noted that this proposal has been presented to the Committee a number of times and defeated each time.
Committee members commented that it is fair not to require the defendant to disclose its witnesses. Defendants generally have contract counsel and do not have the same financial resources to conduct the pretrial investigation that the State is able to conduct. The prosecution has the staff to know ahead of time who will be called as witnesses. In addition, it is fair for the prosecution to disclose witnesses because the prosecution has the burden of proof. The prosecution is responsible for developing the case. Otherwise, an inappropriate burden will be placed on the defense.
Committee members also commented that the real problem is the sanction that may be imposed for failure to disclose. It is unfair to invoke the preclusion sanction against the defendant for failure of an attorney to disclose the defendant's witnesses.
Other Committee members argued that if truth is important, disclosure should be required. Disclosure is required in civil cases even though the plaintiff has the burden of proof. Preclusion of evidence is a sanction in civil cases even though it could prejudice rights that are just as significant for a civil defendant as a criminal defendant.
Committee members commented that disclosure of defense witnesses would create the potential for overbearing activity on the part of the State. Police will be knocking on people's doors and all of a sudden witnesses will refuse to testify.
Committee members questioned whether requiring disclosure by the defense conflicts with the 5th Amendment privilege against self incrimination. The Committee noted that in order to avoid any conflict with the privilege against self-incrimination, some states provide for reciprocal discovery. The defendant must first ask for the names of the prosecution's witnesses. Conditioning access through reciprocal discovery avoids the problem of self-incrimination, because the defendant has no constitutional right to discover the prosecution's evidence unless the evidence is exculpatory. Brady v. Maryland, 373 U.S. 83 (1963). The Committee also noted that a number of other states do require disclosure of defense witnesses. Some of these states require disclosure by either side on demand, without requiring the defendant to ask first.
Committee members expressed concern as to what the Legislature might do if the Committee does not act. Committee members suggested that legislative action could be deferred by
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at least requiring some additional disclosure. It was noted that the 1993 amendment to Rule 16, Fed.R.Crim.P., requires disclosure of expert witnesses. The Committee instructed staff to put amended Federal Rule 16 ahead of the other 1993 federal amendments for the September 1994 meeting.
Mr. Kapsner MOVED that the Committee reject the proposed amendments to Rule 16 as proposed by the Attorney General's office. The motion was seconded and CARRIED.
RULE 4, N.D.R.Civ.P. AND SECTION 27-20-23, UNIFORM JUVENILE COURT ACT, NDCC - INCONSISTENCY BETWEEN SERVICE REQUIREMENTS (PAGES 136-144 OF THE AGENDA MATERIAL)
The Committee reviewed a request from Judge Glaser. Judge Glaser was concerned about the apparent tension between the provisions for service in Rule 4 and Section 27-20-23 of the Juvenile Court Act. The Juvenile Court Act allows service of a summons by mail without requiring a return receipt. Rule 4 conflicts with the Juvenile Court Act because Rule 4 requires a return receipt.
The Committee reviewed Section 27-20-57, NDCC, which provides that the Supreme Court may adopt rules of procedure not in conflict with the Juvenile Court Act. The Committee noted that the statute is probably unconstitutional. Article VI, § 3 of the North Dakota Constitution authorizes the Supreme Court to promulgate rules of procedure and supersede procedural statutes. City of Fargo v. Dawson, 466 N.W.2d 584, 586 n.4 (N.D. 1991). The Committee instructed staff to contact the Legislative Council, and to suggest that the statute be superseded as a housekeeping matter in recognition of the 1976 constitutional amendment. The statute was enacted in 1969.
The Committee next addressed the conflict between the provisions for service of a summons in Section 27-20-23 and Rule 4. Committee members commented that under Section 27-20-22, a hearing on the merits must be held not later than 30 days after filing of the petition. If a return receipt is required, difficulties may arise in achieving timely service. The consensus of the Committee was that the provisions in Rule 4 should not prevail over Section 27-20-23.
Staff explained that currently the provisions for service found in the Uniform Juvenile Court Act prevail over the Rules of Civil Procedure. The Uniform Juvenile Court Act is listed under Table A as a "special statutory procedure under Rule 81" that is excepted from the Rules of Civil Procedure. The Committee decided not to take any action as the statute governs over the Rules of Civil Procedure.
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RULE 42, N.D.R.Civ.P. - TRANSFER AND CONSOLIDATION OF CASES (PAGES 145-151 OF THE AGENDA MATERIAL)
The Committee reviewed a request from Judge Glaser that the Committee consider adopting a procedural rule for the transfer of related cases to a single judge, and for consolidation of cases involving common questions of law or fact. Discussion followed as to whether a rule is needed to provide specific procedures. Currently, Rule 42 does not provide the mechanics for consolidating cases and consolidation is handled on an ad hoc basis. Complex litigation is handled by the court through more judicial involvement under Rule 16.
Some Committee members commented that consolidation should be left up to the individual districts. Different districts may want to handle consolidation differently. Other Committee members commented that there should be uniform rules. Committee members questioned how parties and judges are to know that there are similar cases suitable for consolidation.
Committee members questioned to whom the motion for consolidation should be made. If only one judge is involved, that judge should be able to decide whether to consolidate his or her own cases.
Committee members commented that a procedure is needed which provides notice that there are similar cases. Otherwise, too much discovery will occur before the attorneys realize that the cases could be consolidated. Similar cases need to be identified immediately.
Members discussed whether the rule should provide for a specific person to hear the consolidation motion; such as, the presiding judge, the judge assigned to the first case filed, or the assigned judge if that judge is assigned to all the cases in question. The Committee also discussed the question of whether there should be someone noting that several cases of the same type are being filed and advising the proper judge of the possible need for consolidation.
Mr. Lamb MOVED to add the word "presiding" before the word "judge" on line 39 on page 149 and to strike the remainder of the sentence. Mr. Kapsner seconded the motion.
The Committee instructed staff to write a letter to Chief Presiding Judge Graff requesting that Rule 42 be put on the agenda for a meeting of the Presiding Judges in order to get their input. Mr. Lamb withdrew his motion.
RULE 3.2, NDROC, RULE 6, N.D.R.Civ.P., RULE 45, N.D.R.Crim.P. - MOTION PRACTICE (PAGES 152-163 OF THE AGENDA MATERIAL)
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Staff reviewed the conflict between Rule 3.2 and Rule 6(d). Rule 3.2 and Rule 6(d) conflict as to the number of days that must pass after a motion is served before the motion may be heard. Rule 6(d) requires that a motion must be served at least 5 days before the motion may be heard. Thus, if 3 days are consumed by service by mail, the responding party will only get one day to prepare the answer brief in order to file the answer brief 24 hours before the hearing. Rule 6(d) conflicts with Rule 3.2 because Rule 3.2 provides the responding party with 10 days for preparation of the answer brief.
Staff reviewed the changes proposed to Rule 3.2 and 6(d) to make them consistent. The proposed amendment to Rule 3.2 would require the movant to file a brief with the motion. This would save 8 days between the time a motion is served and the time a motion may be heard; that is, 5 days for preparation of the brief and 3 days for intermediate Saturdays, Sundays, and legal holidays. The proposed amendment to Rule 6(d) would require a motion be served at least 14 days before the motion may be heard. Fourteen days would include 10 days for preparation of the answer brief, 3 days for service by mail and one day for filing the brief before the hearing.
The Committee noted that if a different period is fixed by the rules, the other rule governs. The Committee also noted that a different time period could be fixed by order of the court.
Some Committee members argued that the proposed amendment would slow down the litigation process by lengthening the time period between the time a motion is served and the time a motion may be heard. In the East Central Judicial District motions are sometimes heard immediately after being filed because briefs are not being required. Other Committee members commented that the East Central Judicial District is not following Rule 3.2, so it should not matter to them how 3.2 is amended.
Other Committee members argued that Rule 3.2 is a streamlined procedure that prevents delay. It takes too long to get a hearing. Rule 3.2 saves time by allowing motions to be submitted on briefs. Mr. Lamb MOVED for the adoption of Rule 3.2 and Rule 6(d) as proposed. Mr. Odegard seconded the motion. Motion CARRIED.
Mr. McLean proposed that the Committee adopt a rule consistent with Rule 5(b) of the Local Rules of the United States District Court for the District of North Dakota. Rule 5(b) allows 30 days to respond to a summary judgment motion. Mr. McLean suggested that 10 days is not enough time for responding to a motion for summary judgment. Mr. McLean will send a letter to the Committee requesting review of the time allowed for responding to a motion for summary judgment.
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Judge Hagerty MOVED that the Committee adopt the proposed amendment to Rule 45. Ms. Schmitz seconded the motion. The proposed amendment to Rule 45 is analogous to the proposed amendment to Rule 6. The motion unanimously CARRIED.
RULE 1.1, NDROC - SCOPE (NOT INCLUDED WITH AGENDA MATERIAL)
Staff presented Rule 1.1, NDROC. This proposal was approved by the Committee at the November, 1991, meeting. However, the Explanatory Note still needed the Committee's approval. Judge Smith MOVED for adoption of the Explanatory Note. The motion was seconded and CARRIED.
Committee members questioned what the phrase "specific rule" means in proposed Rule 1.1. Committee members commented that the phrase "specific rule" is meant to refer to specific rules of civil or criminal procedure and not to local rules of court. Rule 3.2 still governs over local rules of court.
RULES 3, 16, and 40, N.D.R.Civ.P. - JUDICIAL CASE MANAGEMENT AND COURT INITIATED SCHEDULING (PAGES 164-185 OF THE AGENDA MATERIAL)
The Committee discussed the merits of earlier and more intensive judicial involvement in the processing of cases. Staff explained that the proposed amendment to Rule 3 would follow the federal rule by providing that an action is commenced by filing a complaint with the court, instead of by service of the summons. The proposed amendment to Rule 16 would provide for more judicial involvement by requiring the court to enter a scheduling order. The proposed amendment to Rule 40 would eliminate notes of issue and certificates of readiness.
The Committee discussed whether an action should be commenced by filing or by service. Committee members commented that the judiciary is often blamed for cases that are not completed in a timely manner. The problem is that the courts have no control and are not aware of the cases until they are filed. The real purpose of amending Rule 3 to provide for commencement of an action by filing would be to implement earlier judicial involvement. The court cannot effectively manage a case if it is already 2 or 3 years old.
Other Committee members commented that parties should be allowed to keep their cases confidential for privacy and settlement reasons. At times, the fear of publicity encourages settlement. In some cases, both the plaintiff and the defendant may not want to make the case public such as in a sexual abuse case. Other members suggested that if an action is commenced by filing, attorneys could still preserve privacy and achieve a settlement by circulating or serving the summons and complaints before filing the action.
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Some Committee members commented that judges should have more control to ensure that cases are being litigated in a timely manner. Because Minnesota and the federal courts have strict deadlines, attorneys are giving those cases precedence over North Dakota's cases.
Committee members commented that if docket currency standards are followed, mandatory scheduling orders are not necessary. Committee members also commented that North Dakota courts do not have the necessary staff to implement a system such as is used in Minnesota or the federal courts.
Some Committee members questioned whether court initiated scheduling would speed up the process. Other Committee members responded that the proposed amendments would result in more efficient processing of cases. Studies show that judicial case management does save time.
Members commented that some cases may need to be filed for statute of limitations purposes, but without the necessity of judicial involvement. For instance, some preliminary investigation may be needed that will allow the case to be settled. However, it would be a waste of time to get the court involved.
The meeting recessed at approximately 4:40 p.m.
APRIL 29, 1994, FRIDAY
Justice Levine reconvened the meeting at approximately 9:00 a.m.
Judge Hunke suggested for discussion purposes that Rule 3, be amended as follows:
A civil action is commenced by the service of a summons. The summons and complaint must be filed within [six months, or another time period] after service, or the action is subject to dismissal without prejudice.
This proposal was offered as a potential compromise. The parties would get the benefit of keeping the litigation private for six months, and yet there would still be fairly early judicial involvement. The docket currency standards apply from the date the case is filed.
Committee members were concerned that dismissal for failure to file an action in a timely manner is too drastic a sanction. If the statute of limitations runs, the attorney could have a malpractice problem. If the attorney does not have malpractice insurance, the plaintiff-victim could be without recourse. As an alternative, the Committee discussed the
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possibility of imposing a monetary sanction for failure to file the summons and complaint within six months.
Other Committee members suggested that the plaintiff's attorney should be required to serve notice with the clerk that the action is commenced; so that the court is aware of the action. Other Committee members commented that this would create a whole new filing system for the clerk of courts.
The Committee directed staff to write a letter to the Chairs of the North Dakota Trial Lawyers Association, the North Dakota Defense Lawyers Association, and the North Dakota Judicial Conference to obtain input as to whether Rule 3 should be amended to provide for commencement of an action by filing.
Discussion next turned to proposed Rule 16. The proposal would require the Court to issue a scheduling order. Members questioned the need for a scheduling conference and scheduling order in all cases. Presently, pretrial conferences are in the court's discretion or an attorney can request a conference if he or she deems it necessary. Pretrial scheduling conferences and scheduling orders are not utilized very often. Scheduling conferences are used in North Dakota for large cases. Mr. Kapsner commented that scheduling conferences are only used in about 30% of his medical malpractice cases.
Committee members commented that it takes longer to get a trial date in Federal District Court than in state court under the present systems. Committee members also commented that the scheduling order cannot be required to be issued 120 days after filing a complaint because domestic relation cases are completed within 120 days. The federal system allows local districts to exempt entire classes of cases from the scheduling order requirement.
Committee members commented that more judicial case management may be necessary in some cases because currently attorneys are reacting to emergency after emergency. Committee members also commented that the proposed changes should not be viewed just in terms of moving cases "faster" but also in terms of whether the cases are processed "better."
Committee members said that three-fourths of cases filed are domestic relations cases. Rule 16 scheduling conferences are not needed in collection and divorce cases. The State Bar Association Family Court Ad Hoc Committee is currently working on improvements to the processing of domestic relations cases. The Committee discussed the possibility of excluding domestic relations cases from the scheduling order requirement and perhaps making a separate rule for those cases. Domestic relations cases are often the cases that cause the public to perceive the judiciary negatively. Committee members suggested that any amendment to Rule 3 and 16 wait until the Family Court Ad Hoc Committee makes its proposals.
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The Committee discussed Minnesota's procedures for the processing of cases. In Minnesota, an action is commenced by service of the summons and complaint. Minnesota then requires an informational statement to be filed 60 days after the action is filed. No sooner than 60 days and no longer than 90 days after an action has been filed, the court is required to issue a scheduling order. Family law matters are excluded from the scheduling order requirement.
Some Committee members argued that North Dakota should use an informational statement to determine whether a scheduling conference is needed and that family law matters should be excluded from the requirement for a scheduling conference. Other Committee members contended that Minnesota has the staff necessary to handle its procedures, whereas North Dakota is facing a reduced number of judges and the workload is increasing without a corresponding increase in staff.
Committee members noted that scheduling orders are not needed in most cases and that attorneys can request a scheduling conference and scheduling order under the current rule. It was suggested that a proposal be drafted requiring an informational statement that would give the judge discretion as to whether the judge wants to hold a scheduling conference and issue a scheduling order. Committee members commented that courts need something telling them whether more judicial involvement is needed in the case. Some courts in North Dakota currently send out a form asking whether the case requires more judicial involvement. When filing in federal court, a form is required to be filled out that explains the nature of the claim.
Some Committee members suggested that the complaint should not be filed at the time it is served. It would also be a waste of time to require another form to be filled out immediately when the case is filed. Attorneys would have more information to include in an informational statement after some discovery has occurred. Also, many cases are settled by stipulation without the need for court involvement. Committee members commented that the need for a scheduling conference and scheduling order may only exist in about 7% of the cases.
Committee members suggested that settlement conferences should be utilized. The Committee discussed the possibility of using settlement conferences more extensively and the necessary staff.
RULE 3, N.D.R.Crim.P. - VERIFICATION OF CRIMINAL COMPLAINT(PAGES 186-202 OF THE AGENDA MATERIAL)
The Committee reviewed a proposal by Judge Grenz to amend Rule 3. The proposal would allow complaints to be sworn to and subscribed before any person authorized to administer oaths and to allow complaints to be presented to the magistrate
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by facsimile transmission. Currently Rule 3 requires the complaint to be made on oath before a magistrate. The purpose of the proposal is to reduce the inconvenience of requiring the complainant to appear before the magistrate to sign the complaint. The magistrate would still have the option of requiring the presence of the complainant if needed to establish probable cause.
Some Committee members suggested that the proposal was a step towards "depersonalizing" the judicial process as the complainant would not actually be required to appear before a judge. Other Committee members argued that allowing complaints to be faxed to the judge would allow more efficient access to judges in rural areas. Committee members said that allowing complaints to be faxed would speed up the process and make it easier for all concerned. The change is needed due to the reduced number of judges that are covering a greater amount of territory.
Judge Hagerty MOVED that the Committee adopt the version of the proposed amendment to Rule 3 on page 197 of the agenda material. The motion was seconded by Professor Kraft and unanimously CARRIED.
The Committee next considered the proposed amendment to the Explanatory Note for Rule 3 on page 198-200. The Committee instructed staff to notify the Legislative Council that Section 29-05-02, N.D.C.C., is superseded to the extent that it requires a complaint to be subscribed and sworn to before a magistrate. Mr. Odegard MOVED to adopt the Explanatory Note as set forth in the agenda material. The motion was seconded by Mr. Lamb and unanimously CARRIED.
The Committee next reviewed the Complaint form (Form 1, Rule 3, N.D.R.Crim.P.) on pages 201 through 202 of the material. The Committee discussed the possibility of combining the complaint and the probable cause affidavit. Some Committee members commented that two separate documents are needed because the complaint is conclusory and simply provides notice of the charge. The probable cause affidavit is more detailed and provides the specific information on which the finding of probable cause can be based. Other Committee members suggested that a finding of probable cause may be made based on the information contained in the complaint, if the complaint is specific enough in detail to support a finding of probable cause. Committee members commented that in some counties, affidavits are contained within the complaint. Committee members commented that the prosecuting attorney must also sign a complaint before it is presented to the judge.
The proposed amendment is not intended to prevent the magistrate from personally examining the complainant on oath.
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The Committee noted that, in the proposed form on page 202, the word "Magistrate" was replaced with the phrase "Officer authorized to administer oath." The Committee noted that magistrates are included within the phrase "Officer authorized to administer oath."
The Committee instructed staff to add an additional signature line for the magistrate to sign when approving the complaint. The signature line for the magistrate should be underneath the signature line for the prosecuting attorney. The prosecuting attorney signs the complaint before the magistrate. Staff was instructed to revise the form and petition the court for its approval along with the proposed amendment to Rule 3.
RULE 41, N.D.R.Crim.P. - SEARCH WARRANTS VIA FACSIMILE TRANSMISSION (PAGES 203-228 OF THE AGENDA MATERIAL)
Previously, the Committee had concerns about non-law-trained magistrates making determinations of probable cause and issuing warrants. The Council of Presiding Judges decided to recommend to the Supreme Court that non-law-trained magistrates not be funded after January 1, 1995. To facilitate the elimination of non-law-trained magistrates, the Council of Presiding Judges requested that the Joint Procedure Committee provide a procedure in Rule 41 for the issuance of search warrants by facsimile transmission.
The Committee reviewed the 1993 amendment to Rule 41, F.R.Crim.P., which allows a federal magistrate judge to issue a warrant based upon sworn testimony communicated by facsimile transmission. The Committee also reviewed rules from other states allowing affidavits and warrants to be transmitted by facsimile transmission.
Mr. Kapsner MOVED the adoption of the proposed amendment to Rule 41(c) as presented on page 217-221 of the agenda material. The motion was seconded by Judge Hagerty. Committee members commented that the proposal would provide a better record than the procedures that are currently used for issuance of a warrant by telephone.
Mr. Kapsner amended his motion to substitute the word "transmitted" for the word "issued" on line 103, page 220 of the agenda material. Judge Bohlman seconded the motion. The change was made because warrants are issued by the magistrate, not by facsimile transmission. The language on lines 113-122 was amended to read as follows:
(iii)Issuance. If the magistrate is satisfied that grounds are established for the issuance of a warrant, The magistrate shall issue a warrant, note on the warrant the exact date and time of issuance of the warrant, and indicate on the warrant that the warrant
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was sworn to over the telephone. The magistrate may then fax the warrant to the applicant. The faxed duplicate of the original has the same force and effect as the original.
The amended motion CARRIED unanimously.
The Committee questioned whether it should be necessary to note on the warrant the exact date and time of issuance and that the warrant was sworn to over the telephone. Other Committee members commented that information as to the circumstances under which the warrant was issued may be helpful to the parties.
The Committee considered the Explanatory Note to Rule 41. Mr. Odegard MOVED adoption of the Explanatory Note as proposed in the agenda material on pages 221-228 with the additional deletion of lines 161-174. Judge Leclerc seconded the motion. Motion CARRIED unanimously.
RULE 23, N.D.R.Civ.P. - CLASS ACTIONS RULE (PAGES 229-247 OF THE AGENDA MATERIAL)
Staff explained that the jurisdictional language of North Dakota's class action rule is broader than constitutionally required. Rule 23(f) requires an absent class action plaintiff to have minimum contacts with the forum state for the forum state to assert jurisdiction. The United States Supreme Court held in Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) that minimum contacts are not required for class action plaintiffs.
North Dakota's rule was modeled after the Uniform Law Commissioners 1976 Uniform Class Action Rule. The Uniform Class Action Rule has been amended in response to Phillips Petroleum Co. v. Shutts. The proposed amendment to Rule 23 would follow the amendment made by the Uniform Law Commissioners. Judge Hilden MOVED adoption of the amendment as proposed. Mr. McLean seconded the motion. Motion CARRIED unanimously.
Professor Kraft MOVED adoption of the proposed amendment to the Explanatory Note. Mr. Kapsner seconded the motion. Motion CARRIED unanimously.
ADMINISTRATIVE RULE 13(8) - REMOVAL OF MATTERS FROM REFEREE TO DISTRICT COURT JUDGE (PAGES 248-258 OF THE AGENDA MATERIAL)
The Committee reviewed Judge Leclerc and Armond Erickson's request for study of AR 13, § 8. The rule provides that any party may move a proceeding from a referee to a district court judge. The concern is that cases are being removed from referees to district court judges for the purposes of delay.
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Committee members questioned the frequency of the problem. Committee members also noted that the proposal does not provide a viable solution. The proposal provides that the request for removal must contain a statement certifying that the request is made in good faith and not for the purposes of delay. Committee members commented that people who are willing to request a district court judge for the purposes of delay would also be willing to certify that the request is made in good faith. The Committee questioned what would be an appropriate sanction. Committee members thought that cases should be allowed to be removed from a referee to a district court judge. The Committee decided to move on to the next agenda item.
RULE 59(f), N.D.R.Civ.P. - MEMORANDUM OF DECISION ON MOTION FOR NEW TRIAL (PAGES 259-263 OF THE AGENDA MATERIAL)
The Committee considered Judge Leclerc's request for elimination of the requirement for a memorandum of decision on a motion for a new trial. The Committee noted that neither the Federal Rules of Civil Procedure or the Minnesota Rules of Civil Procedure require a judge to give an explanation of any kind for denying or granting a motion for a new trial. Judge Leclerc MOVED the adoption of the proposed amendment. Judge O'Keefe seconded the motion.
Committee members commented that a rule requiring a memorandum is not necessary. A judge should be allowed to decide whether he or she feels it would be helpful to include reasons for the decision; but a judge should not be required to give a memorandum of decision in every instance. Committee members commented that what constitutes the memorandum varies greatly. Committee members commented that they did not think the Supreme Court would approve the proposal. The Committee decided to adjourn without a vote being called for on the motion.
The meeting adjourned at approximately 12:00 Noon.
Gerhard Raedeke