Joint Procedure Committee Meeting
Scheduled on Thursday, April 29, 1993 @ 10:00 AM
MINUTES OF MEETING
Joint Procedure Committee
April 29-30, 1993
CALL TO ORDER
The meeting was called to order at approximately 9:00 a.m., April 29, 1993, by Justice Beryl J. Levine, Chairperson.
ATTENDANCE
Present:
Justice Beryl Levine
Honorable Bruce Bohlman (04/29/93 only)
Honorable Gerald Glaser
Honorable Gail Hagerty
Honorable Ronald Hilden
Honorable Lawrence Leclerc
Honorable James O'Keefe
Honorable Kirk Smith (04/29/93 only)
Honorable James Wright (04/29/93 only)
Professor Larry Kraft
Ms. Patricia Ellingson
Mr. Robert Heinley
Mr. John Kapsner
Mr. James Lamb
Mr. Ronald McLean
Absent:
Honorable Wallace Berning
Mr. Dwight Kautzmann
Mr. James Odegard
Mr. David Peterson
Ms. Cathy Howe Schmitz
Staff:
Mr. Gerhard Raedeke
PRELIMINARY MATTERS
The schedule of the Joint Procedure Committee was announced as follows: September 23-24, 1993; January 27-28, 1994; and April 28-29, 1994.
The Committee discussed the lists of cases contained in the explanatory notes to North Dakota Court Rules, (West Publishing Co. 1992). The Committee decided the list of cases should be deleted for the reasons following: 1) the list of
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cases is not a complete list and may mislead the researcher; 2) the list of cases is out-of-date; and 3) since 1990, The Michie Company has been publishing North Dakota's rules with case annotations.
The Committee also discussed the general style and substance of the explanatory notes. The Committee instructed that the entire explanatory note should be considered by the Committee each time an amendment is proposed to the corresponding rule. The explanatory note should contain the reason the rule was amended and how the rule changes current practice. The explanatory note should explain how the rule varies from the federal rule, if the amendment is being made in response to an amendment to the corresponding federal rule.
Staff reiterated that the binder material for the meeting should include only the following: Pages 253-332 of the material that was furnished for the October, 1992, meeting which remains to be finished; pages 1-75 of the material that was furnished for the January, 1993, meeting which remains to be finished; and pages 76-149 which is the new material furnished for the April, 1993, meeting.
APPROVAL OF MINUTES
Mr. McLean MOVED that the minutes of the Joint Procedure Committee meeting of January 28-29, 1993, be approved as submitted. Judge Smith seconded. Motion CARRIED.
HOUSEKEEPING AMENDMENTS IN RESPONSE TO RECENT ENACTMENT OF PROPOSED CONTEMPT LEGISLATION, (PAGES 1-34 OF THE AGENDA MATERIAL)
In considering the applicability of the Rules of Civil Procedure to the contempt legislation, the Committee reviewed Rule 1, Rule 81, and Rule 86 of the North Dakota Rules of Civil Procedure. The Committee decided that the contempt legislation should be excepted from the Rules of Civil Procedure insofar as the legislation is inconsistent or in conflict with the Rules of Civil Procedure. The Committee concluded that the entire chapter on contempt should be listed in "Table A Special Statutory Proceeding Under Rule 81."
The Committee next considered Rule 1 "Scope," NDRCrimP. The Committee concluded that the Rules of Criminal Procedure should apply to contempt cases when punitive sanctions are sought in a nonsummary proceeding. The Committee agreed to adopt Rule 1 as proposed on page 7. The Committee also considered Rule 42, "Criminal Contempt," NDRCrimP. The Committee decided that Rule 42 should be repealed because Rule 42 is already covered by the contempt legislation proposed by the Committee. The Committee indicated that there should be an
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explanatory note indicating that Rule 42 was repealed, and that there should be a cross-reference to the contempt legislation. The explanatory note should not indicate that the rule was repealed by the proposed legislation. The Committee did not want to create the appearance that the legislature can repeal court procedural rules.
The Committee next considered the applicability of the Rules of Appellate Procedure to the newly enacted contempt legislation. The consensus of the Committee was that the 60-day period for appeal provided in civil cases by Rule 4(a), NDRAppP, should apply to all contempts. Current caselaw provides that the 60-day period for appeal applies in contempt cases, rather than the shorter time allowed for appeal in criminal cases. See State v. Stokes, 240 N.W.2d 867 (N.D. 1976). The Committee did not want an appellant to have to determine whether the contempt was a civil or criminal contempt. The distinction is too nebulous. Otherwise, the danger would exist that if an appellant mistakenly assumed that the contempt was a civil contempt and did not appeal within 10 days, the appeal would be lost.
The Committee suggested that a new subdivision be added to Rule 4 which would apply specifically to contempt cases. Mr. Kapsner MOVED to create a new subsection (c) which would provide 60 days for appeal in all contempt cases. The second sentence would provide: In appeals from an order or judgment finding a person guilty of contempt, the rules applicable to criminal cases apply. Mr. Kapsner also MOVED that Rule 1 and Rule 4(a), NDRAppP, not be amended. Judge Glaser seconded the motion. Committee members questioned whether the applicability of the Rules of Appellate Procedure to contempt needs to be stated in Rule 1. The Committee decided to have Mr. Kapsner and staff redraft the proposal so that the Committee could examine the language more closely the next day.
The Committee next considered Administrative Rule 13, "Judicial Referees." Staff explained that the newly enacted contempt legislation eliminates the use of the terms "civil" and "criminal" contempt. The Committee decided to delete the phrase "exercise of civil contempt powers" and to substitute the phrase "power to impose remedial sanctions" as shown on page 14.
Judge Smith MOVED that the Committee act as follows: To adopt Table A, NDRCivP with the addition of a reference to Chapter 27-10, NDCC; to adopt Rule 1, NDRCrimP, as shown on page 7; to repeal Rule 42, NDRCrimP; to adopt an explanatory note to Rule 42 as discussed; and to adopt Administrative Rule 13 as shown on pages 14 and 15. Mr. McLean seconded. Motion CARRIED.
PROPOSED AMENDMENTS IN RESPONSE TO FEDERAL AMENDMENTS
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The Committee considered amendments in response to the December 1991 amendments to the Federal Rules of Civil Procedure.
RULE 45 - SUBPOENA, (PAGES 76-99 OF THE AGENDA MATERIAL)
Staff explained the significant changes made by revision of Federal Rule 45. Pages 79-87 contain a proposed Rule 45 that was tentatively approved by the Committee at the January 28-29, 1993 meeting. Pages 88-99 contain an amended draft of the proposed Rule 45 that was tentatively approved by the Committee. The changes were made by staff according to the general instructions of the Committee. The changes were made to provisions that were the cause of concern at the last meeting, but the Committee was not sure as to the precise language of the change desired.
The Committee reviewed proposed Rule 45 on pages 88-99, provision by provision. The Committee first reviewed subdivision (a)(1) on page 88. The provision is identical to the provision approved by the Committee at the previous meeting on page 79. The Committee noted that the explanatory note should indicate that an action must be filed before a subpoena may be issued. Judge Leclerc MOVED to approve subdivision (a)(1) with the deletion of a comma after the word "or" on line 17 on page 88. Judge Smith seconded. Motion CARRIED.
The Committee next considered subdivision (a)(2) on pages 89 and 90. Paragraphs (2) and (3) were rewritten and merged into one paragraph. In new subdivision (a)(2), lines 53 through 55 are verbatim from North Dakota's current Rule 45.
Discussion ensued concerning lines 55 through 59 on page 90, which provide as follows:
"The subpoena shall be issued in the name of the district court for the county in which the production or inspection is to be made or the deposition or trial is to be held."
Committee members thought lines 55 through 59 should be changed so that a subpoena would only issue from the district court where the action is filed. Judge Smith MOVED that lines 55 through 59 provide as follows:
"The subpoena shall be issued in the name of the district court for the county in which the action is filed."
Judge Smith further MOVED that paragraphs 2 and 3 on page 80 and 89 be deleted and to adopt paragraph (2) on pages 89-90. Judge Leclerc seconded. As part of his second, Judge Leclerc requested that lines 7 and 8 on page 88 be deleted to avoid repetition. Motion CARRIED.
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Lines 59-66, page 90, are from North Dakota's current Rule 45. On line 62, the Committee questioned the meaning of the phrase "if issued by an attorney for a party." The Committee thought this phrase only gave an attorney the power to issue a subpoena when representing a party. The Committee also discussed the phrase on lines 60 through 61, page 90, which provides that "the party requesting the subpoena shall complete it before service." Judges on the Committee said that parties are requesting subpoenas from the clerk. Sometimes attorneys will also get subpoenas from the clerk because the subpoenas look more official with the seal of the court. The suggestion was made that subpoenas should only be issued to or by attorneys. The consensus of the Committee was to leave lines 59 through 66 as they are instead of expressly restricting the issuance of subpoenas to attorneys.
The Committee next considered Subdivision (b) on page 90. Committee members raised the question whether witness fees are limited to nonparty witnesses. Does a party who receives a subpoena for trial have to attend if the fees are not tendered with the subpoena? The Committee considered inserting the phrase "nonparty witness" on page 90, lines 73 and 76. Other Committee members thought the phrase "nonparty witness" would be adding a new concept to the rules. Usually the rules use the words "witness" or "party." Other Committee members thought that a party who is subpoenaed as a witness should be tendered fees. Committee members noted an inconsistency. If you notice a party for a deposition you do not have to tender fees, but if you subpoena a party for trial you may have to tender fees. The Committee concluded that it was open to debate whether fees must be tendered to a party witness. The Committee decided not to specify whether witness fees are required to be paid to parties.
Judge Leclerc MOVED to approve subdivision (b)(1) as set forth on pages 90 through 91 rather than subdivision (b)(1) as set forth on pages 80 through 81. Mr. Lamb seconded. Motion CARRIED.
The Committee next considered subdivision (b)(2) on pages 91-92. Under proposed subdivision (b)(2), notice to other parties is prerequisite for the issuance of a subpoena for production, inspection or a deposition. Committee members questioned why two documents are necessary; that is, a subpoena and a notice. Committee members also questioned why notice must be served before the subpoena is issued. Other Committee members explained that the notice only goes to other parties and that it is necessary for setting up the deposition, production or inspection, and that the notice also gives other parties a chance to monitor discovery. Committee members questioned why the rule was not restricted to pretrial discovery. Committee members questioned how soon before a subpoena is issued the notice must be served. Other Committee members responded that the notice must be served a reasonable amount of time in advance of the production, inspection or deposition to give other
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parties a chance to respond. Some Committee members did not think a notice should be a prerequisite to the issuance of a subpoena. Judge Smith MOVED to adopt subdivision (b)(2) on pages 91-92. Ms. Ellingson seconded. Motion CARRIED.
The Committee discussed whether a provision should be inserted in Rule 45 to provide that letters rogatory is not needed as a prerequisite to the issuance of a subpoena for discovery in North Dakota when the action is filed out-of-state. Rule 45.04(a), Minn.R.Civ.P., provides as follows:
Proof of service of notice to take a deposition, as provided in Rules 30.02 and 31.01 or the rules of a state where the action is pending, constitutes a sufficient authorization for the issuance of a subpoena for the persons named or described therein.
The Committee noted that new federal Rule 45 allows attorneys to issue subpoenas in states or districts other than in the district where the action is pending. Other Committee members questioned how the clerk would know that the notice requirements of the state where the action is pending were complied with. Committee members suggested that the out-of-state attorney would have to certify that he or she was an attorney in good standing in the state where the action was filed and that the notice requirements of the state were followed.
The Committee questioned whether the provision for issuance of subpoenas to out-of-state attorneys should be placed in Rule 45 or in some other rule. Rule 28, NDRCivP, has a provision concerning the procedure for obtaining letters rogatory by North Dakota attorneys. Committee members also questioned whether local counsel would be required for out-of-state attorneys taking depositions in North Dakota. The Committee noted that eliminating a requirement for letters rogatory would make the procedure easier for judges and out-of-state attorneys. Currently, in Cass County Court, the order for a subpoena from an out-of-state jurisdiction is filed under miscellaneous filing. The request for an out-of-state subpoena would need to be filed so that the subpoena could be issued under the proposed rule. Committee members suggested that out-of-state attorneys are more likely to look in Rule 45 to determine the procedure for issuance of a subpoena than Rule 28. The Committee decided to consider a provision for issuance of subpoenas to out-of-state attorneys at a later date.
The Committee next reviewed subdivision (c)(1) and (2) on pages 92 through 93. Subdivision (c)(1) and (2) were approved by the Committee at the last meeting. Judge Leclerc MOVED to provide 10 days for objection to a subpoena rather than 14 days. The motion failed for lack of a second. Judge Smith MOVED to approve subdivision (c)(1) and (2) as set forth on pages 92 and 93 and pages 81 through 83. Motion CARRIED.
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The Committee next considered three versions of subdivision (c)(3). The version of (c) (3) on pages 83-84 was approved by the Committee at the last meeting. The version of (c) (3) on pages 93-94 contains the version considered by the Committee at the last meeting, and the version of (c)(3) on pages 95-96 contains additional changes suggested by the Committee at the last meeting. The Committee thought that the version on pages 95-96 set out a false distinction between quashing and modifying a subpoena. Quashing a portion of a subpoena is in essence modifying a subpoena. The Committee noted that under any of the versions of subdivision (3) (a) a person other than the demanding party may make the motion. Although the party from whom discovery is demanded only has to object, the person from whom discovery is demanded may make a motion to resolve the issue if so desired.
Committee members suggested that the Federal rules should be followed unless there is a significant reason for doing something different. Just because a rule is a federal rule does not mean the rule is done very well; but even so, the federal rule should be followed unless there is a compelling need to do something different. Otherwise you are trading a federal pocket of ambiguity for your pocket of ambiguity without the federal research base to follow for guidance.
Mr. McLean MOVED to adopt the proposal previously approved by the Committee on pages 83 and 84 which essentially follows the federal rule. Ms. Ellingson seconded. Committee members questioned why the word "hearing" was being deleted on lines 122 and 128 on page 83. The federal rule does not use the word "hearing." However, the current North Dakota rule does use the word "hearing." The Committee noted that the word "trial" includes a "hearing" but that a hearing is not necessarily a trial. Mr. McLean amended his motion to approve subdivision (c) (3) (A) and (B) on pages 83 and 84 as shown, but with the exception that lines 122, 128 and 146 should include the phrase "hearing or trial." Ms. Ellingson seconded. Motion CARRIED.
The Committee reviewed subdivision (d) on pages 96-97 which concerns the duties of a person responding to a subpoena. The Committee also reviewed subdivision (e) on page 97 which concerns contempt for failure to obey a subpoena. No changes were proposed to either subdivision from what was approved at the last meeting. Mr. McLean moved to adopt subdivisions (d) and (e) as shown on pages 84-85 and 96-97. Ms. Ellingson seconded. Motion CARRIED.
Mr. McLean MOVED to adopt in total all of the motions approving the various subparts of Rule 45 so that the Committee would be adopting Rule 45 as proposed and carried by the various motions. Ms. Ellingson seconded. The motion CARRIED by a vote of 8 to 6.
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Those opposed to adoption of proposed Rule 45 complained that the rule only complicates things. There was concern that the rule would drive up the cost of litigation by requiring nonparties to obtain counsel to figure out what the subpoena was requesting. There was also concern that the provisions for production of documents and inspection of premises do not belong in Rule 45. Some Committee members thought Rule 45 should simply be the rule that contains the provisions for issuance of subpoenas.
Judge Leclerc and Mr. Kapsner wanted their votes in opposition to Rule 45 recorded. Other members of the Committee indicated that it should not be recorded in the minutes how individual members of the Committee voted.
The Committee did not vote on the proposed explanatory note because staff needed to make additional changes to correspond with the amendments made by the Committee.
RULE 47 - JURORS, (PAGES 100-102 OF THE AGENDA MATERIAL)
The Committee reviewed Rule 47, "Jurors," NDRCivP. At the last meeting, the Committee approved the substance of the proposed amendment to Rule 47 on page 101. Committee members questioned why at the last meeting, the Committee changed the proposal to provide for "one or more" additional jurors rather than "one or two" additional jurors. The proposed rule would not limit the number of jurors that could be impaneled. Some Committee members thought 12 might be the maximum number of jurors allowed constitutionally. Other Committee members indicated that flexibility is needed depending on the length of the trial. Committee members agreed that it is unfair to alternate jurors not to allow them to participate in the verdict.
Judge Smith MOVED that the rule should provide for calling and impaneling "one, two, or three additional jurors" to bring the maximum number that could be impaneled to 12. It was pointed out that the Committee had already approved the language in Rule 47 providing for one or more jurors at the last Committee meeting. Judge Smith changed his motion to a motion for reconsideration. The motion failed.
Mr. Heinley MOVED to adopt proposed subdivision (e) of Rule 47 on page 102. The motion was seconded. Motion CARRIED.
Committee members questioned how many peremptory challenges would be provided if there were additional jurors. At the last meeting, the Committee deleted lines 21 through 27 which provided for an additional peremptory challenge for alternate jurors.
Judge Leclerc MOVED to strike lines 48 through 51 of the explanatory note on the grounds that they are unnecessary.
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Judge Glaser seconded. The motion CARRIED. Committee members pointed out that when extra material is included in the explanatory note, the practitioner is required to read the extra material in the explanatory note to make sure that nothing has been missed. In this case nothing new would be learned by reading the last two sentences of the explanatory note. Other Committee members disagreed and thought examples of good cause for excusing a juror would be useful.
Judge Glaser MOVED to delete the remainder of the explanatory note except for the first sentence about the explanatory note being in response to the federal amendment. Judge Leclerc seconded. Motion failed.
RULE 48 - JURIES OF LESS THAN NINE -- MAJORITY VERDICT (PAGES 103-104 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendment to Rule 48, NDRCivP, was approved at the last meeting. An inconsistency was pointed out between subdivision (a) and (b) of Rule 48. Subdivision (a) provides that the parties may stipulate that the jury may consist of any number. On the other hand, subdivision (b) provides that the jury shall consist of six qualified jurors unless a jury of nine is demanded.
Judge Smith MOVED to reconsider the proposed amendment to Rule 48. Judge Leclerc seconded. The motion CARRIED. Judge Smith MOVED to adopt the new federal Rule 48 as set forth on page 103. Judge Leclerc seconded.
Committee members suggested that a demand for nine jurors is a specific demand, and that the court cannot seat additional jurors if a party specifically demands nine jurors. Committee members noted that Article I, § 13 of the North Dakota Constitution provides that the legislative assembly may determine the size of the jury. Section 28-14-03.1, NDCC, provides that the jury must consist of six qualified jurors unless any party makes a timely written demand for a jury of nine. Other Committee members argued that the Constitution and legislation does not set an upper limit on the size of the jury. Some Committee members also argued that the right to trial by nine is subject to the court's discretion to add one or more additional jurors to avoid mistrials. Judge Smith withdrew his motion in view of the Committee's comments.
Staff was instructed to do additional research to determine whether the court has the power to seat additional jurors who are to participate in the verdict even if none of the other jurors are excused. Committee members noted that the Constitution says "may" instead of "shall."
RULE 50 - JUDGMENT AS A MATTER OF LAW IN ACTIONS TRIED BY JURY (PAGES 105-129 OF THE AGENDA MATERIAL)
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The Committee reviewed the proposed amendment to Rule 50, NDRCivP, that was approved at the last Committee meeting. At the last meeting, the Committee questioned whether the responding party should be given a chance to cure a deficiency in proof after having rested. The research provided by staff indicated that the reason a motion for judgment as a matter of law must be made at the close of all the evidence, and the reason that the basis of the motion must be articulated, is to assure the responding party an opportunity to cure any deficiency in that party's proof that may have been overlooked until called to the party's attention. Mr. McLean MOVED to adopt Rule 50 as adopted by the Committee at the last meeting and to adopt the explanatory note to Rule 50. The motion was seconded. Motion CARRIED.
RULE 404 - CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT, EXCEPTIONS: OTHER CRIMES (PAGES 130-132 OF THE AGENDA MATERIAL)
Staff explained that the Committee approved the proposed amendment to Rule 404, NDREv, at the last meeting with one change. The Committee deleted the phrase "upon request by the accused." The proposed explanatory note explains that, unlike the federal rule, North Dakota's amended rule does not place the burden of requesting notice upon the accused. Judge Leclerc MOVED to approve the explanatory note with the deletion of the third sentence on lines 40-44, page 132. Judge Bohlman seconded. Motion CARRIED.
RULE 16 - DISCOVERY AND INSPECTION (PAGES 133-139 OF THE AGENDA MATERIAL)
Staff explained that the Committee approved the proposed amendment to Rule 16, NDRCrimP, at the last meeting. However, the Committee wanted additional research about the use of the word "relevant" on lines 13 and 35. Staff explained that according to commentaries the relevance requirement is to be interpreted broadly because the government cannot discern with certainty what is relevant from the defendant's standpoint. In addition, without the relevancy qualification, the due diligence requirement on line 17 would impose too great a duty on the government. Staff also explained that the use of the word "relevant" on line 35 was the result of opposition to the rule. The use of the word "relevant" was the result of a compromise. A particular need for the testimony is required to be demonstrated to override the general policy of grand jury secrecy. Also, the relevancy requirement on line 35 is not determined by the government because the defendant must make a motion to the court. The Committee decided to leave the word "relevant" in lines 13 and 35.
At the last meeting, the Committee deleted the word "relevant" which would otherwise appear on lines 20 and 28.
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Judge Leclerc MOVED to adopt the explanatory note. Mr. McLean seconded. Motion CARRIED.
RULE 35 - CORRECTION OR REDUCTION OF SENTENCE (PAGES 140-142 OF THE AGENDA MATERIAL)
Staff explained that at the last meeting, the Committee decided not to make any changes to Rule 35, NDRCrimP, in response to amendments to the federal rule. The Committee then considered whether it wanted to extend the time beyond 120 days for reduction of a sentence. The Committee had concerns about courts overriding decisions of the parole board if courts were allowed to reduce sentences after 120 days. The Committee decided to leave Rule 35 in its current form.
SBAND ATTORNEY STANDARDS COMMITTEE PROPOSED AMENDMENTS TO RULE 60(a), NDRCIVP, AND RULE 7.1, NDROC (PAGES 143-147 OF THE AGENDA MATERIAL)
Staff explained that at the last committee meeting, the Committee approved Rule 7.1, NDROC, and Rule 60, NDRCivP, as shown in the material. Judge Leclerc MOVED to approve the explanatory note to Rule 7.1. Judge Glaser seconded. Motion CARRIED.
Mr. McLean MOVED to approve the explanatory note to Rule 60. Professor Kraft seconded. Motion CARRIED. The Committee noted that Rule 3.2 requires notice. Mr. Kapsner abstained from the discussion and vote on Rule 7.1 and Rule 60.
FACSIMILE TRANSMISSION RULE (PAGES 253-318 OF THE AGENDA MATERIAL)
Staff explained that North Dakota's current rule on facsimile transmission was adopted as an emergency rule to encourage further study and comment. The Committee then reviewed a proposed facsimile rule patterned after the Model Facsimile Utilization Rules prepared by the National Center for State Courts in conjunction with the ABA Judicial Administration Division.
The Committee first considered the definition of facsimile transmission on page 300. Mr. Kapsner moved to amend lines 6 through 11, so the definition of facsimile transmission would provide as follows:
"Facsimile transmission" means the transmission of a copy of a document by a system that encodes a document into electronic signals, transmits these electronic signals over a telephone line, andthat reconstructs the signal to print a duplicate of the original document at the receiving end.
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The Committee next considered the proposed definition of facsimile machines on lines 12-22. The Committee noted that basically all facsimile machines are Group 3 machines. The Committee suggested getting rid of the language requiring Group 3 machines. Group 1 and 2 machines are obsolete. Group 4 machines are used when a high volume of documents are transmitted between 2 installations. In any event, a Group 4 machine probably could not transmit to a Group 3 machine. High speed data lines are required for Group 4 machines.
The Committee thought the original should be required or that a photocopy of the faxed copy should be made if thermal paper is used. The Committee decided that lines 12 through 18 should be deleted as follows:
"Facsimile machine" means a machine that can send or receive a facsimile transmission using the international standard for scanning, coding, and transmission established for Group 3 machines by the Consultative Committee of International Telegraphy and Telephone of the International Telecommunications Union. (CCITT).
The Committee also decided that lines 18 through 19 should be amended as follows:
"The machine should use 20 lb. alkaline base bond paper."
Some Committee members thought that the rule should require plain paper to be used. The Committee decided to defer a decision as to whether there should be a requirement as to the type of paper allowed.
The Committee next considered the definition of "facsimile filing" on pages 300 through 301. Committee members pointed out that facsimile filing does not mean the facsimile transmission of a document, but rather facsimile filing means the receipt of a document by facsimile transmission. Judge Smith MOVED to amend the definition of facsimile filing as follows:
"Facsimile filing" or "filing by fax" means the facsimile transmission and receipt of a document to in the office of the clerk of a trial court for filing by the clerk.
The Committee discussed the meaning of the phrase "in the office of the clerk of a trial court." The phrase "trial court" was substituted for the word "court" to clarify that documents cannot be filed with the supreme court by facsimile transmission. Members suggested that the facsimile machine must be in the office of the clerk, because the clerk needs control over the receiving machine to prevent the date from being
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altered. Some Committee members thought that receipt meant the time that the facsimile transmission was received by the clerk of court; rather than the time the facsimile transmission was received in some other office of the court. Committee members suggested taking out the word "office" so that documents could be faxed to other offices of the county. Other Committee members explained that if you take out the word "office" documents could be faxed to any office in the town and then delivered to the clerk. Judge Smith MOVED to withdraw his motion.
Judge Glaser MOVED to substitute the language from the current rule which provides that filing is deemed complete at the time the facsimile transmission is received by the clerk. Other Committee members pointed out that this is not a definition, but rather a substantive determination as to when filing is complete. Judge Glaser withdrew his motion. Committee members thought that the significant time is not when the auditor's office receives the facsimile transmission; but rather, when the clerk of court receives the facsimile transmission.
The Committee decided that the definition of "fax" and "service by fax" on page 301 was unnecessary.
Committee members questioned whether a faxed document is admissible in evidence to the same extent as an original under Rule 1003, NDREv. The Committee thought that the proposed facsimile rule should provide that a filed facsimile has the same force and effect as the original.
The Committee next considered subdivision (b) on page 301. Paragraph 1 concerns the type of documents that may be filed by facsimile transmission. The Committee considered whether specific types of documents should be listed as unacceptable for facsimile transmission. Committee members questioned why bonds and undertakings could not be faxed. Other Committee members thought the rule should read as follows:
"Bonds and similar undertakings, wills and codicils are not acceptable for facsimile transmission."
The Committee questioned whether the original document should be required to be filed at a later date. Other Committee members thought that the original should be kept by the parties, so that the original would be available for production if a question arose as to the authenticity of the faxed document. The Committee noted that wills are filed for storage purposes rather than litigation. Some Committee members did not want any exceptions as to what could be filed by facsimile transmission as long as the original is required to be filed at a later date. Committee members noted that wills are required to be delivered to the clerk of court by statute. The Committee thought that clerks of court should not be given discretion, if
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they have a facsimile machine, as to what documents are acceptable for filing.
Committee members expressed frustration with the complexity of the rules proposed by the National Center for State Courts. The Committee decided to work through the facsimile transmission issues outlined on pages 267 through 270. The Committee suggested that staff draft a rule patterned after Minnesota's rule and the answers provided by the Committee.
1. The Committee did not think it should be mandatory for every county to have a facsimile machine. Attorneys will simply have to call the clerk of court to determine whether facsimile filings are acceptable. Facsimile machines will not be required to be in the clerk of court's office, so a document may be faxed to the auditor's office for filing by the clerk of court.
2. The Committee discussed the types of documents that may be filed by facsimile transmission. The Committee noted that an affidavit for a search warrant and search warrants should be allowed to be transmitted by facsimile transmission. Some Committee members questioned whether law enforcement officers need the original search warrant. Other Committee members noted that Judges are currently faxing a copy of the search warrant and later substituting the original for the faxed search warrant. The Committee did not think that there should be a requirement that time be of the essence before affidavits or warrants may be faxed. The Committee did not think wills needed to be expressly mentioned in the rule because statutes specifically provide that wills are to be "delivered." The Committee was inclined to require that originals be filed after the document is filed by fax. The consensus of the Committee was that there should not be an attempt to list the types of documents that may be faxed in the rule. The Committee liked Minnesota's rule which provides as follows:
"Any paper may be filed with the court by facsimile transmission."
3. The Committee did not think there should be a page limit to control the length of documents being faxed.
4. To ensure that no text is lost, the Committee thought that there should be margin requirements. Currently, Rule 3.1, NDROC, provides that papers to be filed with the court are to be prepared on 8½ x 11 inch white paper.
5. The Committee did not think it was necessary to expressly require Group 3 facsimile machines because most facsimile machines are Group 3 machines.
6. The Committee did not think it was necessary to establish quality standards for facsimile paper. The Committee
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noted that the sender would not know the quality of paper being used with the receiving facsimile machine. The problem with thermal paper deteriorating will be eliminated if the original document is required to be filed after the facsimile transmission. Some Committee members thought that the originals should be required to be filed even if the county has bond paper machines. Other Committee members suggested that a strong recommendation be sent to the clerks of court indicating that they should use bond paper machines so that originals will not need to be filed. Committee members noted that requiring follow-up originals will discourage the use of facsimile filing. Committee members suggested that the Committee was being inconsistent by saying on one hand that you treat a facsimile as an original, but on the other hand that you still have to file an original.
The Committee questioned what the clerk should do with the faxed copy when the original is received. Some Committee members thought the clerk could throw away the faxed copy. Bond paper machines could be encouraged by only requiring the clerks to make a copy of the facsimile transmission if a machine using thermal paper is used. Other Committee members thought the rule should be uniform as to whether the original is required to be filed.
7. The consensus of the Committee seemed to be that the original should be filed within 5 days after a document is filed by facsimile transmission.
8. The Committee discussed the procedure upon receipt of a follow-up original. Clerks will have to stamp both documents and go through the file to determine when the fax was filed. The Committee questioned whether the faxed document should stay in the file.
9. The Committee questioned when filing is complete. For instance, what if a document is faxed to the county auditor's office and the clerk does not get the document for three days. Other Committee members said that it would be easier to have the attorney keep the original document for production, rather than requiring the original to be filed after a document is filed by fax. The Committee also discussed when filing is complete if the original is required to be filed after a document is submitted by facsimile transmission. The Committee suggested that the facsimile rule should provide that the court in which the action is pending may make such orders as are just upon failure to comply with the requirements of the facsimile rule by not timely paying the filing fee and user service fee.
10. The Committee considered how much extra work will be required by clerks if documents are submitted by facsimile transmission. Having to stamp and file both the faxed copy and the original documents will create additional work. Some
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Committee members suggested that too much work will be created for clerks, if when they get the original, the clerks have to go to the file and determine when the fax was filed. The Committee questioned whether both the faxed document and the original document should remain in the file. Other Committee members indicated that filing by facsimile transmission is not going to be burdensome for the clerks; because in actuality, not that many documents will be filed by fax.
11. The Committee considered whether a facsimile transmission user fee should be collected to cover costs. The Committee felt that a fee should be charged, and noted that Minnesota charges a flat $5 fee per fax. Other Committee members noted that the state auditor has instructed the clerks not to file an action unless the appropriate filing fees have been received. Committee members noted that Minnesota does not require filing fees and facsimile transmission user service fees to be paid until five days after the document is filed by fax. Committee members suggested giving courts the power to do what is just when filing fees and facsimile transmission user service fees are not paid within five days.
12. The Committee discussed whether a uniform cover sheet should be required. The Committee did not think a uniform cover sheet was necessary.
13. The Committee discussed whether documents should only be allowed to be faxed during certain hours. The Committee thought that documents should only be allowed to be faxed during business hours. Also, the Committee did not think that the clerks needed to verify receipt because the transmission record produced by the sending machine is adequate.
The meeting adjourned at approximately 5:00 p.m.
April 30, 1993, Friday
Justice Levine reconvened the Committee at approximately 9:00 a.m.
CONTEMPT HOUSEKEEPING Continued (PAGES 10-13 OF THE AGENDA MATERIAL)
The Committee continued its discussion regarding the applicability of the rules of appellate procedure in contempt cases. Staff presented a new proposal regarding Rule 1, "Scope of Rules." The proposed amendment would provide as follows:
In appeals from an order or judgment finding a person guilty of contempt, except as otherwise provided in
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Rule 4(a), the rules applicable to criminal cases govern punitive sanctions and remedial jail sentences.
Staff also proposed amending Rule 4, NDRAppP, by leaving the rule as it currently appears, but with the addition of a new subdivision (c) that would provide as follows:
(c) Appeals in Contempt Cases. The notice of appeal shall be filed with the clerk of the trial court within sixty days after entry of judgment or order appealed from.
The proposed explanatory note would provide as follows:
Subdivision (c) was added, effective __________________________.
Mr. McLean MOVED that Rules 1 and 4, NDRAppP, and the explanatory notes to the respective rules be approved as presented by staff. Judge Glaser seconded.
Some Committee members suggested that Rule 1 should not be amended, and that new subdivision (c) in Rule 4 should have another sentence providing that the appellate rules applicable to criminal cases apply to all contempt cases. The Committee noted that the proposal by staff would only make cases involving punitive sanctions or remedial jail sentences follow the rules of appellate procedure applicable to criminal cases. Other contempt cases such as those involving a forfeiture or compensation would follow the rules of appellate procedure applicable to civil cases. Some Committee members thought it would be simpler to make all the rules of appellate procedure which are applicable to criminal cases applicable to all contempt cases. Committee members were concerned about the difficulty of knowing the type of contempt involved. Other Committee members were concerned about consistency. It would seem inconsistent to apply the rules of appellate procedure applicable to criminal cases to remedial jail sentences if the rules of criminal procedure are not applicable to contempt cases involving remedial sanctions.
Committee members suggested that nothing should be stated in Rule 1 about the applicability of the rules of appellate procedure to particular types of contempt. Concern was expressed that attorneys will be confused when they read the language about punitive or remedial sanctions in Rule 1 because it is a new concept. The Committee noted that the provisions for stays in criminal cases as provided in Rule 8(c), NDRAppP, should be applicable to contempt cases when a jail sentence is imposed regardless of whether the sanction is classified as punitive or remedial. Likewise, when a remedial sanction is imposed such as compensation or a forfeiture, the rules of appellate procedure applicable to civil cases should apply to the contempt case. For instance, when a court order compels the performance of an act the rules applicable to stays in civil
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cases should apply. The Committee was concerned that by trying to clarify which rules of appellate procedure apply in a particular contempt proceeding, more confusion was likely to result because the old problem of distinguishing between civil and criminal contempt would again exist. Instead, the Committee decided to use a commonsense approach. The Committee thought that a commonsense approach could be used which would be based on the nature of the sanction or the proceeding. Commonsense would indicate that if a jail sentence is involved, the rules of appellate procedure applicable to releases from jail would apply. Committee members noted that most appeals will be in civil cases. Therefore it would be more confusing if the criminal rules of appellate procedure apply to those cases. The rules of appellate procedure should apply where it is reasonable for that particular rule to apply. Judge Leclerc MOVED that no amendment be made to Rule 1, NDRAppP, and that Rule 4 be amended by adding a new subdivision (c) which will provide as follows:
(c) Appeals in Contempt Cases. A notice of appeal shall be filed with the clerk of the trial court within sixty days after entry of judgment or order appealed from.
Judge Leclerc further MOVED that there be no other amendment to Rule 4 and that the explanatory note provide that subdivision (c) was added, effective ___________________. Judge Glaser seconded. Motion CARRIED. The original motion by Mr. McLean and seconded by Judge Glaser was withdrawn.
EXPLANATORY NOTE TO RULE 45 - SUBPOENA (PAGES 97-99 OF THE AGENDA MATERIAL)
When approving Rule 45, the Committee expressed a desire that the notice requirement in subdivision (b)(2) only apply to pretrial depositions, pretrial production, or pretrial inspection. Staff explained that the proposed explanatory note expressly provides that subdivision (b) requires notice of compulsory "pretrial" production, inspection, or attendance at a deposition. Mr. Heinley MOVED to amend subdivision (b)(2) on page 91 to provide as follows:
Service of a notice to take a deposition as provided in Rules 30(b) and 31(a) is a prerequisite for the issuance of a subpoena that commands a person to attend and give testimony at a pretrialdeposition. Service of a notice for production of documents and things, or inspection of premises, as provided in this rule, is a prerequisite to the issuance of a subpoena that commands production or inspection before trial. A description of the material to be produced, or premises to be inspected, shall be included in the notice or attached to the notice. Notice shall be served on each party in the manner prescribed by Rule 5(b). A copy of
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the notice and proof of service constitutes sufficient authorization for the clerk to issue a subpoena for a pretrial deposition, pretrial production, or pretrial inspection. The attorney's signature on a subpoena issued by an attorney for a party constitutes certification that notice was served.
Professor Kraft seconded. Motion CARRIED. The change was made to clarify that notice is not required for a deposition, production or inspection that occurs during trial.
Committee members commented that the requirement to file before a subpoena may be issued will be very controversial. Filing generates publicity making it less likely that settlement will be reached. Other Committee members noted that sometimes cases cannot be settled until they are filed. Committee members noted that requiring an action to be filed protects a nonparty from abuse.
Mr. McLean MOVED to adopt the explanatory note which was revised by staff as follows:
Rule 45 was amended, effective ____________________, in response to the 1991 federal revision. New subdivision (a) requires the action to be filed before a subpoena may be issued. Subdivision (a) was also amended to authorize the issuance of a subpoena to compel a non-party to produce evidence independent of any deposition, and to authorize the issuance of a subpoena to compel the inspection or premises in the possession of a non-party upon order of the court for good cause shown. The provisions formerly found in subdivision (b) for production of documents were deleted. The provisions formerly found in subdivision (c) for issuance of a subpoena were incorporated into new subdivision (a). New subdivision (b) pertains to service of a subpoena, and also requires notice of compulsory pretrial production, inspection or attendance at a deposition. The provisions for service formerly found in subdivision (d) were deleted or are found in new subdivision (b). The provisions for notice, and proof of service of notice, formerly found in subdivision (e) were deleted or are found in new subdivision (b). The provisions for issuance and service of a subpoena for a trial formerly found in subdivision (f) were deleted or are found in new subdivision (b). New subdivision (c) provides protection for witnesses. New subdivision (d) provides the duties of a person responding to a subpoena. New subdivision (e) contains the provisions regarding contempt that were formerly in subdivision (g); except failure to obey a subpoena without adequate excuse no longer automatically constitutes contempt. An additional sentence was added to assure that a
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non-party cannot be found in contempt when a subpoena purports to require a non-party to attend or produce outside the limits of the rule.
The motion CARRIED.
RULE 3.2 AND MOTION PRACTICE (PAGES 35-65 OF THE AGENDA MATERIAL)
The Committee considered the proposed amendment to Rule 3.2 on page 43. The Committee objected to elimination of the 5-day period for requesting oral argument after the expiration of the time for filing briefs. Committee members stated that the moving party should have a chance to request oral argument after receiving the respondent's brief. Otherwise, the moving party needs to be able to file a reply brief. In addition, if the moving party is not given a chance to request oral argument after reviewing the respondent's brief, the movant will have to request a hearing in the first instance. The Committee did not want to encourage requests for hearings. Staff explained that the reason for eliminating the 5-day period to request oral argument is to shorten the time period needed between the date of the motion and the date of the hearing.
Judges on the Committee indicated that they find the requests for hearings all over the place. Committee members suggested that the requests for hearings should be in the notice. Where do you put the notice of oral argument if you are the moving party and have already made the motion?
Committee members questioned the reason for proposing to amend Rule 3.2. Staff referred the Committee to First Western Bank of Minot v. Wickman, 464 N.W.2d 195 (N.D. 1990), and Breyfogle v. Braun, 460 N.W.2d 689 (N.D. 1990). These cases require that motions must be noticed, and that the notice must indicate whether the motion will be decided on briefs or whether oral argument is requested. Judges on the Committee indicated that to avoid any problems, some attorneys are quoting the entire Rule 3.2 in the notice.
The Committee was of the opinion that all motions are Rule 3.2 motions. The Committee decided to study the cases before making any decision about amending Rule 3.2.
The Committee next considered Rule 5, "Service and Filing of Pleadings and Other Papers," NDRCivP, on pages 46 through 47. Staff explained that under the current rule supporting papers are only required to be filed prior to the hearing. Presumably this could be immediately before the hearing. The proposed amendment would provide that supporting papers must be filed not later than one day before the hearing. Committee members suggested that the provision should provide for "24 hours" before the hearing, instead of "one day" before the hearing. Otherwise the supporting papers might not be filed
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until late in the day and the hearing may be immediately the next morning. The Committee noted that clerks will have to use an hour stamp. Pat Ellingson MOVED to amend Rule 5(d) (2) so that it would provide as follows:
All affidavits, notices and other papers designed to be used upon the hearing of a motion or order to show cause shall be filed prior to the hearing not later than 24 hours before the hearing unless otherwise directed by the court.
Mr. Kapsner seconded. Motion CARRIED. Professor Kraft MOVED to approve the explanatory note to Rule 5 so that it would provide as follows:
Subdivision (d)(2) was amended, effective __________________, to provide that briefs and other papers in support of a motion are to be filed not later than 24 hours before the hearing.
Mr. Lamb seconded. Motion CARRIED.
The Committee next examined Rule 6 "Time," NDRCivP, for potential inconsistencies with Rule 3.2, NDROC. Staff explained that Rule 6(d) appears to conflict with Rule 3.2 because Rule 6(d) provides that a written motion and notice of hearing may be served not later than five days before the hearing. On the other hand, Rule 3.2 requires a 15-day period for preparation of briefs. Rule 6(d) also implies that a hearing is required. In addition, Rule 6(d) provides that supporting papers may be served not later than one day before the hearing. Rule 3.2 requires the responding party to serve supporting papers within 10 days after service of a brief.
Committee members indicated that as a practical matter motions are seldom served just 5 days before the hearing. Other Committee members indicated that in certain cases, a party may need to make a motion and get a hearing in less than 5 days. Other members of the Committee questioned why Rule 3.2 is not in Rule 6 since Rule 3.2 governs. The Committee was concerned about motions being made in less than the time period required for preparation of briefs under Rule 3.2. Committee members noted that various statutes require hearings within a certain amount of time. Other Committee members questioned whether Rule 3.2 applies to statutory requirements for a hearing versus a motion.
Committee members commented that the notice does not always go with the motion under Rule 3.2. Other Committee members stated that the notice better start going with the motion pursuant to the recent North Dakota Supreme Court cases.
The Committee discussed whether Rule 6(d) should expressly state the number of days in which the motion must be
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noticed before the hearing to ensure that the responding party is given adequate time to prepare a responsive brief. Some Committee members expressed concern that requiring the motion to be served and filed a certain number of days before the hearing would institutionalize delay because some people will answer sooner than required by the rule.
The Committee decided that the tension between Rule 6(d) and Rule 3.2 should be eliminated by merging Rule 3.2 into Rule 6(d).
Committee members stated that an order to show cause hearing is not equivalent to a Rule 3.2 motion because an order to show cause is issued by the court and Rule 3.2 hearings do not involve witnesses.
The Committee next considered Rule 17.1, "Omnibus Hearing and Pretrial Conference," NDRCrimP. Staff explained that Rule 17.1 also appears to conflict with Rule 3.2 because subdivision (b)(2) seems to require that all motions are to be presented orally at the omnibus hearing. Rule 3.2 does not require motions to be presented orally. Rule 17.1 also provides that issues may be raised at the omnibus hearing without prior notice. Rule 3.2 requires prior notice. Committee members pointed out that under Rule 17.1, the hearing may be continued and that the omnibus hearing is rarely used.
Staff also explained that Rule 17.1 appears to conflict with Rule 45, NDRCrimP. Rule 45 requires notice of a hearing and requires the motion to be served not later than 5 days before the hearing. The Committee instructed staff to amend Rule 45 to incorporate Rule 3.2. The Committee decided to consider the problems with the omnibus hearing at a later date. The amendments for court unification may resolve the problems with the omnibus hearing.
NORTH DAKOTA COURT UNIFICATION
The Committee discussed the court unification that is to go in effect January 1, 1995. Amendments are going to be needed to various rules of criminal procedure. The Committee suggested using a task force that would include people who are not on the Committee. Judge Hagerty and Judge Hilden volunteered to assist. If a task force is used, it should include county judges, district judges, prosecutors and defense attorneys. The Committee also considered the option of dividing the rules among various people. Judge Glaser indicated that he would help if assigned specific rules. The Committee was unsure how much work would be involved in making the necessary amendments for court unification. Committee members noted that municipal judges can act as magistrates to issue search and arrest warrants.
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The Committee instructed staff to start with a complete new set of materials at the fall meeting.
Committee membership was discussed. The Committee suggested that members be given the option to continue service with the Committee at the end of their three-year terms. The Committee also reiterated its old rule that if a member doesn't show up for three concurrent meetings, the Committee member may be asked to give up membership on the Committee. Mr. Kapsner indicated that he would like to stay on the Committee even if he is no longer the North Dakota State Bar Association representative.
The suggestion was made to invite members of the bar at large to meetings of the Joint Procedure Committee. Other Committee members were against inviting nonmember attorneys to the meeting because there is already a shortage of time at the meetings. Furthermore, there is a danger that the representative balance of the Committee would be altered. As an alternative, the suggestion was made that staff should write an article for The Gavel so that the Bar would be more aware of the Joint Procedure Committee.
The suggestion was made that the Committee have at least one meeting a year in Fargo and that the Committee occasionally meet in other places of the state besides Bismarck. Committee members expressed an interest in meeting in Medora for the fall meeting.
The meeting adjourned at approximately 12:00 noon.
Gerhard Raedeke
Staff Attorney