Joint Procedure Committee Meeting
Scheduled on Sunday, May 16, 1971 @ 2:50 PM
MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
for the Adoption of Rules of Criminal Procedure
May 16, 1971
The meeting was called to order at 1:50 p.m., May 6, 1971, in the hearing room of the Supreme Court.
Supreme Court Judge Ralph Erickstad, Chairman;
District Judge Eugene A. Burdick;
County Judge Kirk Smith;
District Judge Norbert J. Muggli;
First Assistant Attorney General Paul Sand;
District Judge Roy A. Ilvedson;
Mr. John Shaft; and
Mr. Roger Persinger.
Retired Supreme Court Judge James Morris;
Former Supreme Court Judge William S. Murray;
Mr. Robert L. Vogel; and
Mr. John Graham.
Also present were
Mr. Robert Wefald, law clerk, and
Mrs. Lorna Bender, secretary.
Mr. Larry Feinstein of the Associated Press attended part of the meeting.
The chairman welcomed those present.
In regard to the minutes of the meeting of December 10, 1970, Judge Burdick asked that the word "were" be corrected to "are" on line 21 of page 21; that on page 10, the 14th line from the bottom, the clause "if a copy of a transcript of the proceedings before the grand jury cannot be obtained" be inserted after the word "examination"; and also on page 10, the 19th line from the bottom, the word "permitted" be changed to "required". Then Judge Burdick moved that the minutes be adopted as corrected. The motion was seconded by Mr. Shaft and it carried.
Section 4 of Senate Bill No. 2005, setting forth the appropriation for two rule revisers, was discussed and two applications for the positions were passed around and discussed. The applicants had been interviewed by Judge Paulson and their applications approved by the other judges of the supreme court, subject to the approval of the committee. Mr. Shaft suggested waiting until Mr. Glaser, Mr. Sand, and Judge Smith arrived later in the meeting before discussing the matter.
John Graham delivered copies of Senate Bills No. 2382, relating to demand for change of judge, and No. 2230, relating to grand jury. Mr. Graham had to leave immediately.
Judge Burdick said the bills reflected the consensus developed in this committee. The accused before a grand jury would get a preliminary examination only when he could not get a copy of the transcript as it pertained to him.
Judge Muggli said the committee had come to the conclusion months ago that it didn't have the power to make rules on grand jury and now that the Legislature had made some changes, this committee could pass over the topic. The chairman appointed Judge Muggli to make an explanatory note for the rule.
The chairman called on Judge Ilvedson for a report on Rule 44. Judge Ilvedson read his letter of March 2, 1971, and his draft of Rule 44, as follows:
"The minutes of the meeting of July 10, 1969 (pages 16 to 22) and the minutes of November 20, 1969 meeting (pages 3 to 8) will give you our prior discussions on this rule.
"Under date of March 5, 1970, 1 mailed each of you my twenty-two page analysis of recent cases and articles on the right to counsel. Beginning at page 19 you will find my summary or conclusions. The last proposed Rule 44, as last amended, is set forth at page 6 of the November 20th, 1969 meeting:
'Rule 44. Right to and Assignment of Counsel.
'Every defendant who is charged with a public offense for which the punishment imposable by law is confinement in excess of 90 days or a fine in excess of $500.00 and who is unable to obtain counsel, is entitled to court-appointed counsel. He is entitled to have such counsel assigned to him at every stage of the proceedings from his initial appearance before the magistrate or the court through appeal, unless he waives such appointment. If the defendant is unable to pay for such legal representation without undue hardship, the court-appointed counsel shall be at public expense.'
"The above rule has not been adopted because three or four members of the committee believe that it is not broad enough. At least two members of the committee are in favor of providing counsel to indigent defendants charged with ordinance violations in municipal court if a jail sentence is imposable. At least two members are strongly opposed to providing counsel in municipal court at any time.
"I am attaching hereto for your convenience statutes which are directly or indirectly applicable to the rule under consideration, as well as two opinions of the office of the Attorney General of North Dakota.
"It appears to me that a compromise should be considered by the committee for an adoption of Rule 44. First, I suggest that we substitute 'in excess of thirty days' for the words 'in excess of ninety days.' I appreciate the fact that this would still automatically exclude any municipal ordinance violations which are limited to thirty days by statute. Second, as is suggested in the HENDRIX case perhaps right to counsel should be provided indigent defendants on appealfrom a conviction in municipal court. Thus, a magistrate would not have to inform every single person appearing before him that he has the right to counsel, and yet the extraordinary case could be appealed and counsel provided on appeal. Perhaps the following sentence could be added to Rule 44 if it is the decision of the committee to broaden it:
'Whenever a jail sentence is imposed upon a defendant in municipal court for violation of a municipal ordinance, upon an appeal from such conviction to the district court or county court of increased jurisdiction, if such defendant is unable to pay for legal representation without undue hardship, he is entitled to court-appointed counsel on such appeal and the trial de novo in the higher court. Expenses necessary for the adequate defense of a needy person when approved by the presiding judge on such appeal shall be paid by the municipality of the court from which such appeal is taken.'
"I am inclined not to provide court-appointed counsel in municipal court at the present time. But I am willing that such counsel be provided on appeal if it appears to be the wish of a majority of the members of the committee."
[Following are the statutes and opinions referred to in Judge Ilvedson's letter.]
Section 29-13-03. N.D.C.C. Arraignment, right to have counsel.--
"If a defendant appears for arraignment without counsel, he must be informed by the court that it is his right to have counsel before being arraigned and must be asked if he desires the aid of counsel. If he desires, and is unable to employ, counsel, the court must assign counsel to defend him. Counsel so assigned shall serve without cost to the defendant and shall have free access to the defendant, in private, at all reasonable hours while acting as counsel for him. Assignment of counsel shall not deprive the defendant of the right to engage other counsel at any stage of the proceedings in substitution of counsel assigned to him by the court. Failure to assign counsel before arraignment shall not affect the validity of any proceeding in the cause if it appears that the defendant was subsequently represented by counsel, whether assigned to him or of his own choosing, and that the defendant in fact was not prejudiced by such failure."
Section 29-07-01. N.D.C.C. Magistrate's duty--Testimony may be taken.--
"When the defendant is brought before a magistrate upon an arrest, either with or without a warrant, on a charge of having committed a public offense which the magistrate is without authority to try and determine, the magistrate immediately shall inform him:
1. Of the charge against him;
2. Of his right to remain silent;
3. Of his right to the aid of counsel before answering any questions and until such times as he is released or finally convicted;
4. Of his right to have his legal services provided for at public expense to the extent he is unable to pay for his own defense without undue hardship; and (Emphasis supplied)
5. Of his right to a preliminary examination and his right to waive same."
Section 29-07-01.1. N.D.C.C. Appointment of counsel for indigents-Payment of expenses.--
"The magistrate before whom a defendant charged with the violation of state criminal law is brought may appoint counsel from a list prepared under the direction of the senior district judge in his district and in the manner prescribed by him. The determination of the degree of need of the defendant shall be deferred until his first appearance before the trial judge, and the court may require the defendant to answer all inquiries under oath concerning his need for appointment of counsel. Thereafter, the court concerned shall determine, with respect to each proceeding, whether the defendant is a needy person. The appropriate judge may appoint counsel for a needy person at any time or for any proceeding arising out of a criminal case if reasonable.
"Lawyers appointed to represent needy persons shall be compensated at a reasonable rate to be determined by the court. Expenses necessary for the adequate defense of a needy person, when approved by the judge, shall be paid by the county wherein the alleged offense took place. A defendant with appointed counsel shall pay to the county such sums as the court shall direct. The state's attorney shall seek recovery of any such sums any time he determines the person for whom counsel was appointed may have funds to repay the county within six years of the date such amount was paid on his behalf." (Emphasis supplied)
Opinion of Attorney General dated Nov. 15, 1967 upon request of a judge of a County Court of Increased Jurisdiction as to the applicability of section 29-07-01.1 to such courts:
". . . It is therefore our opinion that county courts of increased jurisdiction have the authority to appoint counsel for indigents in criminal cases involving the violation of a State criminal law at any time, including instances where it has jurisdiction to try and determine the case regardless whether the charge is a felony or a misdemeanor. The reasonableness must be determined by the judge is provided for in the statute. By arriving at this conclusion we are not suggesting that the Court routinely appoint counsel for indigents in every misdemeanor, but only in such cases where the Court deems it to be justified and reasonable. Neither is this opinion to be construed that counsel must be appointed for a misdemeanor. It merely concludes that such authority exists." (Emphasis supplied.)
Opinion of Attorney General dated November 17, 1969 stating that section 27-07-01.1 is not applicable to municipal ordinance violations and that a municipality is not required to provide funds for counsel for an indigent defendant in such court:
". . . As you are aware, the North Dakota statutes governing trials in municipal courts do not specifically provide for the appointment of counsel for an indigent defendant charged with the violation of a city ordinance. As you are also aware, the Supreme Court of North Dakota has consistently held that cities, being creatures of the Legislature, have only such powers as are specifically granted them by the Legislature or must necessarily be implied from the powers so granted. See, e.g., Kirkham, Michael § Associates v. City of Minot, 122 N.W.2d 862 (N.D. 1963). The Legislature has approved the appointment of counsel for indigents charged with violation of a State criminal law. See section 29-07-01.1 of the North Dakota Century Code, as amended. The use of the term 'state criminal law' as well as the provision that expenses of court appointed counsel for indigents shall be paid by the county wherein the alleged offense took place makes it abundantly clear that such statute is not, by its own terms, applicable to charges of violations of municipal ordinances.
"Since the cities may impose a jail sentence as well as a monetary penalty for violation of a city ordinance, the Supreme Court of North Dakota has also recognized that certain city ordinances may, in fact, be criminal in nature. See, e.g., City of Minot v. Whitfield,
71 N.W.2d 766 (N.D. 1955). However, we also note the 1969 North Dakota Legislature reduced the permissible jail sentence for violation of a city ordinance from 90 to 30 days. See Section 40-05-06 of the North Dakota Century Code, as amended.
"Section 40-18-11 of the North Dakota Century Code provides:
'HOW PROCEEDINGS IN CRIMINAL CASES NOT PROVIDED FOR IN THIS CHAPTER TO BE GOVERNED.--
In all cases not specifically provided for in this chapter, the process and proceedings in the court of a municipal judge shall be governed by the provisions of the laws of this state regulating proceedings in justices' courts in either civil or criminal cases.'
"An argument could be made that since section 29-07-01.1 is applicable to justice courts it is also, by reason of the provisions of section 40-18-11, quoted above, applicable to municipal courts. This office has previously been requested to answer the question of whether or not a city may spend public funds to pay for a defense lawyer appointed by the municipal judge. Because of the fact the municipal judge in that case had already determined such authority existed, we refrained from answering the question since it is a policy of this office to refrain from comment on matters pending judicial determination or judicial decisions already made. Thus we believe the decision as to whether the municipal judge has the authority (as opposed to the duty) to appoint counsel for an indigent defendant charged with violation of a city ordinance is a matter for the court to determine. In appropriate cases we will provide the court with a brief on questions submitted to us by the court. However, we do not deem it proper to substitute our judgment for that of the judiciary when the question is concerned directly with a procedural power of the judiciary.
"Your question, however, is concerned with whether the municipal judge is required, as a matter of law, to appoint counsel for an indigent defendant charged with a violation of a city ordinance. In this regard we would note that section 29-07-01.1 of the North Dakota Century Code, as amended, is permissive rather than mandatory. Each situation must be determined on its own merits. If there is no statutory requirement that counsel be appointed for the indigents charged with a violation of State criminal law, it is obvious that no such statutory requirement exists with regard to indigents charged with violation of a city ordinance in municipal court. we are, of course, aware that in many instances the Supreme Court of the United States as well as the Courts of other States have held appointment of counsel in criminal cases is a requirement of the United States Constitution. In cases which are directly similar to those decided by the United States Supreme Court decisions of the United States Supreme Court are binding upon the States ...
(At this point the Attorney General discusses the HENDRIX and STEVENSON cases of the State of Washington and Oregon, respectively, and which you will find beginning at pages 7 and 16 of my written analysis of March 5, 1970)
"The Legislature and the Courts of this State and the Supreme Court of the United States have not spoken with regard to this matter. This office cannot, by opinion, usurp the functions of the Legislature or the Courts by holding that the municipal court is required to appoint counsel for indigent defendants charged with violation of a city ordinance when, as discussed above, no statute or Court decisions of this State or of the Supreme Court of the United States require same nor when the Courts of other States are by no means unanimous in their determination of this question when same has been presented.
"For the reasons stated above, it is our opinion that a municipality is not, under present law, required to appoint counsel at public expense for an indigent defendant charged with violation of a city ordinance."
Section 12-01-06. N.D.C.C. Definition of Crime.--
"A crime or public offense is an act committed or omitted in violation of a statute forbidding or commanding it, and to which is annexed, upon conviction, one of the following punishments:
4. Removal from office;
5. Disqualification to hold or enjoy any office of honor, trust, or profit under this state; or
6. Other penal discipline"
Section 29-26-21. N.D.C.C. Judgment for fine and costs.--
"A judgment that the defendant pay a fine and costs may direct that he be imprisoned until both the fine and costs are satisfied, specifying the extent of the imprisonment, which must not exceed one day for every two dollars of the fine and costs, but such imprisonment does not discharge the judgment for fine and costs, nor either."
Section 12-06-26. N.D.C.C. Fine may be added to imprisonment.--
"Upon a conviction for any crime punishable by imprisonment in any jail or prison in relation to which no fine is prescribed herein, the court may impose a fine on the offender of not more than two hundred dollars in addition to the imprisonment prescribed."
Section 12-44-33. N.D.C.C. Convict to receive credit for labor to apply on judgment.--
"For each day of labor performed by a convict under the provisions of this chapter, there shall be credited on any judgment for fine and costs against him the sun of two dollars." [Changed to "five dollars" S.L. 1967, ch. 113, § 1.]
(The above section is under Chapter 12-44 "County Jails and Workhouses.")
(A quick search of Chapter 12 N.D.C.C. shows there are many state crimes providing punishment of not more than 30 days, and some providing for maximum jail terms of less than 30 days; such as 5 days and 10 days. Sections 12-43-04; 12-21-30; 12-21-16; 12-42-03; 12-42-04; 12-26-04; 12-42-02, as examples.)
Section 13 of North Dakota Constitution.
"In criminal prosecutions in any court whatever, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf; and to appear and defend in person and with counsel. No person shall be twice put in jeopardy for the same offense, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law."
Section 33-12-34. N.D.C.C. (Justice Court). Appeal--Time--How taken-Notice--Bail.--
"An appeal may be taken from a judgment of a county justice or a police magistrate sitting as a county justice, to the district court by the state in a criminal action, upon any question of law, and by the defendant upon both questions of law and fact, at any time within thirty days after the entry of judgment, by giving a notice of the appeal, and by the defendant giving bail for his appearance in district court as prescribed in this chapter. Any defendant having pleaded guilty without the advice of counsel shall, within thirty days thereafter, upon application of his attorney, be entitled to have any judgment entered on such plea vacated and a new trial granted."
(The Supreme Court in Espeland v. Police Magistrate's Court, 78 N.D. 349, 49 N.W.2d 394 and City of Minot v. Kitzman, 71 N.W.2d 633 held that the above statute applies only to actions in justice court and has no application to a judgment in the police magistrate court.)
Section 40-18-11. N.D.C.C. How proceedings in criminal cases not provided for in this chapter to be governed.--
"In all cases not specifically provided for in this chapter, the process and proceedings in the court of a municipal judge shall be governed by the provisions of the laws of this state regulating proceedings in justices' courts in either civil or criminal cases."
Section 40-11-12. N.D.C.C. Commitment of guilty person.--
"Any person upon whom any fine or penalty shall be imposed for a violation of a municipal ordinance may be committed, upon the order of the court before whom the conviction is had, to the county jail, city prison, workhouse, house of correction, or other place provided by the municipality for the incarceration of offenders until the fine, penalty, and costs shall be fully paid in money or discharged by labor as is provided in section 40-18-12."
Section 40-18-12. N.D.C.C. Commitment for violation of city ordinance--Limitation--Labor in lieu of fine.--
"If the defendant is found guilty of the violation of a municipal ordinance and is committed as is provided in section 40-11-12, the term of his imprisonment shall not exceed three months for any one offense. The governing body may provide by ordinance that each person so committed shall be required to work for the municipality at such labor as his strength will permit, not exceeding ten hours in each working day, and for such work the person so imprisoned shall be allowed for each day, exclusive of his board, five dollars on account of the fines and costs assessed against him."
Section 40-05-06. N.D.C.C. City fines and penalties limited.--
"The fine or penalty for the violation of any ordinance, resolution, or regulation of a city shall not exceed five hundred dollars, and the imprisonment shall not exceed thirty days for one offense."
Judge Ilvedson said that the Legislature prohibited any municipality from placing punishment higher than thirty days, and that quite a few county justices and lawyers are opposed to appointed counsel for municipal thirty-day sentences.
Judge Muggli asked if it wouldn't be advisable to let the Legislature determine when counsel should be appointed, because the Legislature has to levy funds to pay for it and this committee does not.
Judge Burdick said there is a constitutional duty to provide counsel in certain cases where the United States Supreme Court says it is necessary. Judge Ilvedson said that some states have gone further than the United States Supreme Court and that there are also quite a few laws where the punishment is less than ninety days.
Judge Ilvedson moved that Rule 44 as set forth in his letter of March 2
[page 2 of these minutes] be amended and the words "30 days" be substituted for "90 days". Judge Smith seconded the motion.
Judge Muggli made a substitute motion to change "90 days" to "six months and $500." Judge Burdick seconded the motion. Judge Burdick said that his position was that when you provide counsel that is not legally required, you are in effect making a gift contrary to the Constitution. He said he would hew to the line of the United States Supreme Court and not take the initiative to go further.
Judge Ilvedson read from the Minnesota decision, State v. Borst, 154 N.W.2d 888, 889, which is discussed and quoted in his 22-page report dated March 5, 1970:
"In the exercise of our supervisory power to insure the fair administration of justice, we decide that counsel should be provided in any case whether misdemeanor or not, which may lead to incarceration in a penal institution. In other words, if the court is to impose a jail sentence, counsel should be furnished. We leave for future determination the question of whether counsel must be furnished where only a fine is to be imposed. . . ."
Judge Ilvedson then read from the majority opinion in Hendrix v. City of Seattle, 456 P.2d 696 (1969), as underscored on page 9 of his report of March 5, 1970:
". . . if an indigent accused feels aggrieved at the results of his trial in municipal court, he may appeal to the superior court. If, because of special or disabling circumstances such as the youth, inexperience, or physical or mental disabilities, the superior court is of the view both that the misdemeanor is of such seriousness and the special circumstances affecting the defendant warrant it, that court may appoint counsel at public expense in the sound exercise of its discretion."
After further discussion a vote was taken and the substitute motion changing "90 days" to "six months and $500" prevailed. In favor were: Burdick, Sand, Muggli, Smith and Persinger.
Judge Burdick then moved that the word "confinement" be changed to "imprisonment" in the third line of Rule 44 as submitted, by Judge Ilvedson, because "confinement" implies mere detention and it should mean "imprisonment" as a means of punishment. Judge Muggli seconded the motion and it carried.
Judge Burdick moved that the following sentence be inserted after the second sentence of Rule 44:
"If the punishment imposable by law is six months or less or a fine of $500 or less and defendant is unable to obtain counsel, the court in its discretion may appoint counsel for the defendant."
Judge Smith seconded the motion. He said his reason for supporting the motion was that sometimes there is a case where the legal issues are not very complex but the defendant is incapable of handling it, and in that case if the appointment of counsel is within the authority of the court, the money is well-spent. Judge Ilvedson agreed that sometimes justice is not served because the defendant doesn't have a lawyer.
It was pointed out that not being able to obtain counsel and not being able to pay for it are two separate things.
Robert Wefald read from the federal case Baldwin v. New York 90 S.Ct. 1886, 1888 (1970), which reaffirms the case of Duncan v. Louisiana, 391 U.S. 145, 159, 88 S.Ct. 1444, 1453, 20 L.Ed.2d 45 (1968):
". . . we have concluded that no offense can be deemed 'petty' for purposes of the right to trial by jury where imprisonment for more than six months is authorized.
"New York has urged us to draw the line between 'petty' and 'serious' to coincide with the line between misdemeanor and felony. As in most States, the maximum sentence of imprisonment for a misdemeanor in New York is one year, for a felony considerably longer. It is also true that the collateral consequences attaching to a felony conviction are more severe than those attaching to a conviction for a misdemeanor. And, like other States, New York distinguishes between misdemeanors and felonies in determining such things as whether confinement shall be in county or regional jails, rather than state prison, and whether prosecution may proceed by information or complaint, rather than by grand jury indictment. But while these considerations reflect what may readily be admitted--that a felony conviction is more serious than a misdemeanor conviction--
they in no way detract from appellant's contention that some misdemeanors are also 'serious' offenses. Indeed we long ago declared that the Sixth Amendment right to jury trial 'is not to be construed as relating only to felonies, or offenses punishable by confinement in the penitentiary. It embraces as well some classes of misdemeanors, the punishment of which involves or may involve the deprivation of the liberty of the citizen.' Callan v. Wilson, 127 U.S. 540, 549, 8 S.Ct. 1301, 1303, 32 L.Ed. 223 (1888).
"A better guide '[i]n determining whether the length of the authorized prison term or the seriousness of other punishment is enough in itself to require a jury trial' is disclosed by 'the existing laws and practices in the Nation.' Duncan v. Louisiana, supra, 391 U.S. at 161, 88 S.Ct. at 1453. In the federal system, as we noted in Duncan, petty offenses have been defined as those punishable by no more than six months in prison and a $500 fine. And, with a few exceptions, crimes triable without a jury in the American States since the late 18th century were also generally punishable by no more than a six-month prison term. Indeed, when Duncan was decided two terms ago, we could discover only three instances in which a State denied jury trial for a crime punishable by imprisonment for longer than six months: the Louisiana scheme at issue in Duncan, a New Jersey statute punishing disorderly conduct, and the New York City statute at issue in this case. These three instances have since been reduced to one. In response to the decision in Duncan, Louisiana has lowered the penalty for certain misdemeanors to six months, and has provided for a jury trial where the penalty still exceeds six months. New Jersey has amended its disorderly persons statute by reducing the maximum penalty to six months' imprisonment and a $500 fine. Even New York State would have provided appellant with a six-man-jury trial for this offense if he had been tried outside the City of New York. In the entire Nation, New York City alone denies an accused the right to interpose between himself and a possible prison term of over six months, the commonsense judgment of a jury of his peers."
Judge Burdick moved to change his motion which added a sentence to Rule 44 by rewording the sentence to read: "In all other cases in which a defendant is unable to obtain counsel, the court in its discretion may appoint counsel for him." Judge Smith seconded the motion. A vote was taken and Judge Muggli's was the only dissenting vote.
Then Judge Burdick moved to revise his earlier motion changing lines 3 and 4 of Rule 44, so the first sentence of the rule would read: "Every defendant who is charged with a public offense punishable by imprisonment for more than six months or by a fine of more than $500 and who is unable to obtain counsel, is entitled to court-appointed counsel." Judge Smith seconded the motion and it carried.
Judge Burdick moved that Rule 44 be approved as amended. Mr. Persinger seconded the motion and it passed. Judge Muggli's was the only dissenting vote.
Judge Muggli explained his vote by noting that the adoption of the rule in this form changes the concept of appointment of counsel for indigent defendants; that under the present system a determination is made at the time whether or not the defendant is financially able to hire counsel on his own; under the new rule all that has to be determined is that
he is unable to hire counsel, and the question of ability to pay is considered only at a later date in reference to the payment of counsel fees.
Judge Ilvedson read from Goolsby v. Gagnon, 322 F.Supp. 460 (Wis. 1971), wherein the United States District Court held that the due-process clause of the 14th Amendment required that parolees be given a hearing prior to the revocation of their paroles and that they were entitled to assistance of counsel at such hearing as well as the right to have counsel appointed for them if they were indigent.
Also in that connection, Mr. Persinger mentioned Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254 (1967).
Rule 44 as adopted reads:
"Rule 44. Right to and Assignment of Counsel.
"Every defendant who is charged with a public offense punishable by imprisonment for more than six months or by a fine of more than $500 and who is unable to obtain counsel, is entitled to court-appointed counsel. He is entitled to have such counsel assigned to him at every stage of the proceedings from his initial appearance before the magistrate or the court through appeal, unless he waives such appointment. In all other cases in which a defendant is unable to obtain counsel, the court in its discretion may appoint counsel for him. If the defendant is unable to pay for such legal representation without undue hardship, the court-appointed counsel shall be at public expense."
Judge Burdick read his proposed draft of Rule 57, as follows:
"Rule 57. Rules of Court; Procedure Not Specified.
"(a) Rules by the supreme Court. Rules of court made by the supreme court for the conduct of criminal proceedings in the trial courts of this state shall not be inconsistent with these rules. Copies of all rules of court made by the supreme court shall upon their promulgation be furnished to the judges and clerks of the courts of this state exercising criminal jurisdiction, to members of the judicial council, and to the executive secretary of the State Bar Association of North Dakota, to the end that all rules made as provided herein be published promptly and that copies of them be available to the public.
"(b) Procedure not Otherwise Specified. If no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules or with any applicable statute.
Judge Burdick then read Federal Rule 57 for comparison:
"(a) Rules by District Courts and Courts of Appeals. Rules made by district courts and courts of appeals for the conduct of criminal proceedings shall not be inconsistent with these rules. Copies of all rules made by a district court or by a court of appeals shall
upon their promulgation be furnished to the Administrative office of the United States Courts. The clerk of each court shall make appropriate arrangements, subject to the approval of the Director of the Administrative Office of the United States Courts, to the end that all rules made as provided herein be published promptly and that copies of them be available to the public.
"(b) Procedure not Otherwise Specified. If no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules or with any applicable statute."
Judge Burdick said that he thinks there is a general feeling in North Dakota against district courts promulgating rules, that rules ought to be made by the supreme court. He said that the effective provision is (b), that the court can follow any practice not inconsistent with these rules. He pointed out Sections 27-02-08 through 27-02-15, and Judge Erickstad read 27-02-13.
"27-02-13. Means of putting into effect rules or amendments to rules adopted by supreme court.--No new rule or amendment promulgated under the provisions of sections 27-02-07 and 27-02-08 shall become effective until the supreme court shall have:
"l. Made an order in writing adopting the same;
"2. Caused the same to be signed by the chief justice and attested by the clerk of the supreme court under the seal of such court;
"3. Filed the same in the office of the clerk of the supreme court and caused a certified copy thereof and of the order adopting the same to be filed in the office of the clerk of the district court of each county in the state.
"4. The clerk of the district court of each county shall enter each rule so filed at length in the records of his office.
"The clerk of the supreme court shall file proof of the filing of a certified copy of such rule and of the order adopting the same in the office of the clerk of the district court of each county with the original record relating to such rule; and such clerk shall mail a copy of any rule adopted by the supreme court under the provisions of sections 27-02-07 and 27-02-08 and of the order adopting the same to each judge of the district court and to each judge of the county court of increased jurisdiction within eight days after such rule has been adopted.
"All rules so adopted by the supreme court shall be published in the official reports of the cases decided by the supreme court of North Dakota. The court may make such additional publication of any rule as it may deem desirable."
Judge Burdick read Section 86 of the North Dakota Constitution:
"The supreme court, except as otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be co-extensive with the state and shall have a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by law."
Robert Wefald read the Amendment to Federal Rule 57, as follows:
"(a) Rules by District Courts. Rules made by district courts for the conduct of criminal proceedings shall not be inconsistent with these rules. Copies of all rules made by a district court shall upon their promulgation be furnished to the Administrative Office of the United States Courts. The clerk shall make appropriate arrangements, subject to the approval of the Director of the Administrative Office of the United States Courts, to the end that all rules made as provided herein be published promptly and that copies of them be available to the public."
Judge Burdick read Rule 83 of the North Dakota Rules of Civil Procedure:
"Each district court, upon agreement of the judges or a majority thereof, may from time to time make and amend rules governing its practice not inconsistent with these rules or other rules prescribed by the supreme court. Copies of rules and amendments so made by any district court shall upon their promulgation be furnished to the supreme court of this state. In all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules."
Judge Burdick then moved that Rule 83 of the North Dakota Rules of Civil Procedure be adopted as Rule 57, with the addition of the words at the end of the rule: "or with any applicable statute". Judge Ilvedson seconded the motion.
Mr. Sand said that each judicial district would have different rules and that he thought one rule should apply to everyone.
After further discussion, Judge Burdick and Judge Ilvedson temporarily withdrew their motion and its second.
After the meeting was called to order on Friday morning, Robert Wefald read Federal Rule 26.1:
"Determination of Foreign Law. A party who intends to raise an issue concerning the law of a foreign country shall give reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under Rule 26. The court's determination shall be treated as a ruling on a question of law."
He then read from Barron § Holtzoff, § 2191 (Supp. 1966):
"Rule 26.1 setting forth a procedure for the determination of foreign law, was adopted in 1966. With one unimportant difference, it is the same as Civil Rule 44.1, which was adopted at the same time. Accordingly the discussion of the civil rule should be consulted for an explanation of how the procedure operates. The right of confrontation provided by the Sixth Amendment may limit the second sentence of the rule, permitting the court to consider material other than testimony, in criminal cases, but the draftsmen hope to avoid such problems on the theory that the issue is essentially one of law rather than fact, and that in any event the Sixth Amendment is not a rigid barrier against the development of reasonable and necessary exceptions to the hearsay rule."
Mr. Persinger said that he had come to the conclusion that it would not be applicable to our rules.
Mr. Wefald read the advisory notes that follow Federal Rule 26.1:
"The original Federal Rules of Criminal Procedure did not contain a provision explicitly regulating the determination of foreign law. The resolution of issues of foreign law, when relevant in federal criminal proceedings, falls within the general compass of Rule 26 which provides for application of 'the [evidentiary] principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.' See Green, Preliminary Report on the Advisability and Feasibility of Developing Uniform Rules of Evidence for the United States District Courts 6-7, 17-18 (1962). Although traditional 'common-law' methods for determining foreign-country law have proved inadequate, the courts have not developed more appropriate practices on the basis of this flexible rule. Cf. Green, op.cit.supra at 26-28. On the inadequacy of common-law procedures for determining foreign law, see, e.g., Nussbaum, Proving the Law of Foreign Countries, 3 Am.J. Comp.L. 60 (1954).
"Problems of foreign law that must be resolved in accordance with the Federal Rules of Criminal Procedure are most likely to arise in places such as Washington, D.C., the Canal Zone, Guam, and the Virgin Islands, where the federal courts have general criminal jurisdiction. However, issues of foreign law may also arise in criminal proceedings commenced in other federal districts. For example, in an extradition proceeding, reasonable ground to believe that the person sought to be extradited is charged with, or was convicted of, a crime under the laws of the demanding state must generally be shown. See Factor v. Laubenheimer 290 U.S. 276 (1933); Fernandez v. Phillips, 268 U.S. 311 (1925); Bishop, International Law: Cases and Materials (2d ed. 1962). Further, foreign law may be invoked to justify non-compliance with a subpoena duces tecum, application of Chase Manhattan Bank, 297 F.2d 611 (2d Cir. 1962), and under certain circumstances, as
a defense to prosecution. Cf. American Banana Co. v. United Fruit Co., 213 U.S. 347 (1909). The content of foreign law may also be relevant in proceedings arising under 18 U.S.C. §§ 1201, 2312-2317.
"Rule 26.1 is substantially the same as Civil Rule 44.1. A full explanation of the merits and practicability of the rule appear in the Advisory Committee's Note to Civil Rule 44.1. It is necessary here to add only one comment to the explanations there made. The second sentence of the rule frees the court from the restraints of the ordinary rules of evidence in determining foreign law. This freedom, made necessary by the peculiar nature of the issue of foreign law, should not constitute an unconstitutional deprivation of the defendant's rights to confrontation of witnesses. The issue is essentially one of law rather than of fact. Furthermore, the cases have held that the Sixth Amendment does not serve as a rigid barrier against the development of reasonable and necessary exceptions to the hearsay rule. See Kay v. United States, 255 F.2d 476, 480 (4th Cir. 1958), cert. den., 358 U.S. 825 (1958); Matthews v. United States, 217 F.2d 409, 418 (5th Cir. 1954); United States v. Leathers, 135 F.2d 507 (2d Cir. 1943); and cf., Painter v. Texas, 85 S.Ct. 1065 (1965); Douglas v. Alabama, 85 S.Ct. 1074 (1965)."
Mr. Sand read from Moore's Federal Practice, Vol. 8, 2nd ed., Chapter 26.1, the fourth paragraph of the committee notes:
"It is necessary here to add only one comment to the explanations made in connection with the civil rule. The second sentence of the criminal rule proposed here frees the court from the restraints of the ordinary rules of evidence in determining foreign law. This freedom, made necessary by the peculiar nature of the issue of foreign law, should not constitute an
unconstitutional deprivation of the defendant's rights to confrontation of witnesses. The cases have held that the Sixth Amendment does not serve as a rigid barrier against the development of reasonable and necessary exceptions to the hearsay rule. See Kay v. United States, 255 F.2d 476, 480 (4th Cir. 1958), cert. den., 358 U.S. 825 (1958); Matthews v. United
States, 217 F.2d 409, 418 (5th Cir. 1954); United States v. Leathers, 135 F.2d 507 (2d Cir. 1943)."
The chairman asked Mr. Persinger to do a little more study on this matter and come in with a recommendation at the next meeting.
Judge Ilvedson summarized his study on Rule 44 for the members who were not in attendance the previous day when it was discussed.
Judge Burdick read his draft of proposed Rule 58:
"Rule 58. Appendix of forms.
"The forms contained in the Appendix of Forms are illustrative and not mandatory."
Judge Burdick then read Rule 84 of the North Dakota Rules of Civil Procedure:
"The forms contained in the Appendix of forms are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate."
Judge Burdick said that the rule he proposed is identical to the Federal Rule and he moved the adoption of Rule 58 in that form. The motion was seconded by Judge Muggli and it carried.
Judge Burdick read his proposed draft of Rule 59:
"Rule 59. Effective Date; Statutes Superseded.
"(a) Effective Date. These rules will take effect on _________________. They govern all criminal proceedings thereafter commenced and so far as just and practicable all proceedings then pending.
"(b) Statutes Superseded. Upon the taking effect of these rules, all statutes and parts of statutes in conflict herewith and the statutes listed in Tables B and C are superseded."
After a brief discussion, Judge Burdick moved for the adoption of Rule 59, Judge Muggli seconded the motion, and it carried.
Judge Burdick read his proposed draft of Rule 60.
"Rule 60. Title.
"These rules shall be known as North Dakota Rules of Criminal Procedure and may be cited as N.D.R.Crim.P."
Judge Burdick moved the adoption of Rule 60. Judge Ilvedson seconded the motion and it carried.
Judge Burdick presented his new version of Rule 57:
"Rule 57. Rules of Court, Procedure not Specified.
"(a) The judge of any court governed by these rules, or a majority of judges of the district courts, in a judicial district, may from time to time make and amend rules governing its practice not inconsistent with these rules or other rules prescribed by the Supreme Court or by any applicable statute. Copies of rules and amendments so made shall be furnished to the Supreme Court, to the Judicial Council, and to the State Bar Association of North Dakota, to the end that all rules made as provided herein are published promptly and that copies of them are available to the public.
"(b) In all cases not provided for by rule or statute, the governed court may regulate its practice in any manner not inconsistent with these rules or any applicable statute."
Judge Burdick moved the adoption of his new version of Rule 57 and Judge Smith seconded the motion.
Judge Muggli questioned the necessity of requiring city and county courts to publish their rules. Judge Burdick said "publish" as used in the rule means merely to make widely known and does not mean newspaper publication.
Mr. Persinger read Federal Rule 57, which is set forth on pages 11 and 12 of these minutes.
Judge Burdick said he had used Civil Rule 83 [page 13 of these minutes] in drafting 57(b). After some discussion, he moved to add the word "lawful" between "any" and "manner" on the second line of 57(b). Judge Ilvedson seconded the motion and it carried.
Mr. Sand said he was somewhat concerned about every district coming up with rules different from other districts. He said that serious efforts had been made to make statutes uniform, to keep the public informed, and that this proposed rule would set up little islands of different procedures.
Judge Burdick said that his first draft had the supreme court making these rules and that (a) wouldn't be needed at all if the supreme court were to do it. He said that if there are occasions where they become too diverse, the supreme court could straighten them out. He said that he has been a judge for 18 years and hasn't made any special rules at all.
Judge Smith said that he preferred custom to rules and that he would hate to have to consult with all other county judges in the state on whether he was going to hear probate in the morning or the afternoon.
Mr. Sand suggested amending "majority of the judges of the district court" to "majority of the district judges in the state". Judge Muggli said that if the committee was striving for uniformity, it was not being consistent here.
Mr. Glaser said that every time a lawyer got out of his own district, he would have to work with an unfamiliar system and it would be better if he had to keep track of only one set of rules.
Judge Erickstad asked if they wouldn't want to begin the rule with "Any court governed by these rules" instead of "The judge of any court", and it was so changed. Mr. Sand said that he recognized that there should be elbowroom to fit the personality of the judge and he moved adoption of the motion to amend, which was seconded by Judge Burdick.
The chairman restricted the discussion to (a), and Mr. Wefald asked why it was necessary to have all district judges meet state-wide.
Judge Erickstad said that raised a point he had considered before. He said that as he understood the original intention it was that municipal and county courts would adopt rules individually, but that on the district court level the rules had to be adopted by a majority of the district judges over the entire state. He suggested clarifying the language.
Judge Ilvedson said that he didn't like the idea of county justices drawing up their own rules. He said that section (b) was all that was necessary for the rule.
Judge Burdick said that whether (a) was wanted at all was a basic question. Judge Muggli asked if (a) were done away with, would the supreme court still have the power to make rules, and the answer was yes.
Judge Muggli made a substitute motion to delete (a), and strike everything after "Rule 57" and in place thereof entitle the rule "Practice When Procedure Not Specified" and use the last paragraph without the "(b)". The word "lawful" added earlier would remain in. Judge Ilvedson seconded the motion.
Mr. Glaser asked if that meant that each judge within a district can make his own rules? The answer was yes. Judge Ilvedson said that is what judges are doing now, telling lawyers what they (the judges) are going to do, without making specific rules. Mr. Glaser said that without specific rules a party couldn't be prejudiced by the court for failure to follow small requirements, but that it was different when those requirements were brought to the level of rules.
Judge Muggli said individual judges should have leeway and if it got to be a problem, the supreme court could regulate it.
A vote was taken on Judge Muggli's substitute motion to delete (a), and it carried.
Judge Burdick then moved that Rule 57 be adopted as amended and Mr. Sand seconded the motion. It carried.
Rule 57 adopted as amended reads:
"Rule 57. Practice when Procedure Not Specified.
"In all cases not provided for by rule or statute, the governed court may regulate its practice in any lawful manner not inconsistent with these rules or any applicable statute."
Judge Smith said that at the last meeting he was asked to draft a Table A for Rule 54. His draft of Rule 54 is on page 19 of the minutes of December 10, 1970.
After a discussion of the table, during which Judge Smith wanted to know if there should be more in the table and less in the rule, or less in the table and more in the rule, the chairman suggested that he draft it both ways and submit it to the committee for a choice at the next meeting.
The committee then resumed discussion of the two application for code revisers, and Judge Ilvedson moved that the committee approve the two candidates. Mr. Sand seconded the motion and it carried.
The chairman appointed Mr. Sand chairman of a steering committee for the revisers. Judge Smith suggested putting all Bismarck members on that committee, and the chairman appointed the following: Mr. Persinger, Mr. Glaser, Mr. Graham Judge Murray, and Mr. Vogel. Judge Erickstad is to be present when they meet.
The date for the next meeting was set for September 16, 17, and 18, 1971.
Lorna L. Bender, Secretary