Joint Procedure Committee Meeting

Scheduled on Thursday, May 21, 1987 @ 10:00 AM

MINUTES OF MEETING

Joint Procedure Committee

May 21-22, 1987

CALL TO ORDER

The meeting was called to order at 9:00 a.m., May 21, 1987, by Justice H. F. "Sparky" Gierke, Chairman.

ATTENDANCE

Present:

Hon. Eugene Burdick
Hon. Gerald Glaser
Hon. Ronald Hilden
Hon. Frank Kosanda
Hon. Lawrence Leclerc
Hon. Beryl Levine
Hon. Kirk Smith
Mr. Leonard Bucklin
Mr. Robert Heinley
Mr. Dwight Kautzmann
Mr. James Lamb
Mr. LeRoy Loder
Mr. Ronald McLean
Mr. David Peterson
Ms. Cathy Howe Schmitz

Absent:

Hon. Wallace Berning
Hon. James O'Keefe
Mr. Arne Boyum, Jr.
Professor Larry Kraft

Staff:

DeNae Kautzmann, Staff Attorney
Sandy Demianew, Secretary

TEMPORARY COURT OF APPEALS

Each member of the Joint Procedure Committee received a copy of the proposed administrative rule drafted by the Future Appellate Court Services Study Subcommittee of the Court Services Administration Committee for the Temporary Court of Appeals. Mr. Larry Spears gave a presentation concerning the proposed administrative rule and addressed questions posed by the Joint Procedure Committee members. Mr. Spears explained each section of the proposed administrative rule concerning the Temporary Court of


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Appeals. Judge Burdick MOVED to recommend an amendment to Section 5. Judge Leclerc indicated that, while some of the sections are administrative, it is clear that there are sections that are procedural in nature and it is within the Joint Procedure Committee's province to address procedural matters. Judge Burdick withdrew his motion.

When Mr. Spears concluded his presentation, Judge Leclerc suggested that the proposed administrative rule for the Temporary Court of Appeals be placed at the top of the agenda for discussion tomorrow morning. The Committee generally discussed Mr. Spear's presentation.

Judge Smith indicated that there is a need to give direction to counsel, i.e., if the appeal involves a novel issue, whether it would go to the Supreme Court, or whether certain issues will be given to the Court of Appeals for consideration. Judge Burdick indicated that a language change in Section 14(e) concerning the assignments of cases to the Court of Appeals may help to clarify for counsel what types of cases may be heard by the Court of Appeals.

Mr. Peterson questioned whether a party can challenge any of the judges on the. Appellate Court panel. Mr. Spears indicated that there is no provision for this. He also pointed out that the Supreme Court at this time does not intend to appoint lawyers to the panel.

Mr. Loder indicated that he did not like Section 11 because it is an added burden to the litigant (Section 11 discusses the reassignment of a case to the Supreme Court). Mr. Loder stated that this would involve extra costs to the litigant. Judge Smith stated that Section 11 is counterproductive. This section results in delay, extra costs, and complicates the process. Judge Burdick suggested that Section 11 be amended to indicate that a reassignment to the Supreme Court may take place before argument but not after argument unless the parties consent. Judge Leclerc pointed out that the reassignment of cases is provided for in the statute. Judge Burdick questioned whether a rehearing before the Court of Appeals may be granted when the statute provides for a petition for review.

Mr. Peterson pointed out that the indemnification statute does not include intermediate appellate court judges. (This issue was not discussed by the Committee).


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Mr. Peterson indicated that a party should be able to challenge a judge sitting on the panel. Mr. Spears pointed out that the subcommittee of Court Services Administration Committee did not want parties to be judge shopping and therefore did not include a challenge provision.

Judge Leclerc MOVED to defer action until tomorrow morning. Judge Kosanda seconded the motion. Motion CARRIED.

APPROVAL OF MINUTES

Judge Kosanda MOVED that the minutes of the joint Procedure meeting of February 19-20, 1987, be approved as submitted. Judge Leclerc seconded the motion. Motion CARRIED.

RULE 31, NDRAppP

Handout #3 contained the materials sent to Justice Gierke from Justice VandeWalle concerning Rule 31(c), NDRAppP. Judge Leclerc MOVED to place this topic at the bottom of the agenda for discussion tomorrow morning. Judge Kosanda seconded the motion. Motion CARRIED.

RULE 45, NDRCivP and EXPLANATORY NOTE

Proposed Rule 45 was approved at the last meeting except for style changes suggested by Judge Burdick. The Committee directed staff to incorporate the style changes into Rule 45. Mr. Bucklin MOVED to approve proposed Rule 45. Mr. Kautzmann seconded the motion. Motion CARRIED. Judge Kosanda MOVED to approve the explanatory note to proposed Rule 45, NDRCivP. Mr. Lamb seconded the motion. Motion CARRIED.

RULE 68, NDRCivP

The Committee discussed the history of Rule 68(a)(b), NDRCivP. Mr. Bucklin indicated that subdivision (a) followed the Federal rule and that subdivision (b) was placed in the rule because of Section 9-12-24, NDCC. Judge Kosanda MOVED to approve proposed Rule 68(b), NDRCivP. Judge Smith seconded the motion. Motion CARRIED.


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Mr. Bucklin MOVED that there be no further changes to proposed Rule 68(c), NDRCivP. Judge Leclerc seconded the motion. Motion CARRIED.

Mr. Bucklin suggested at line 9, page 309 of the meeting materials that the following language be added: "Subdivision (b) does not supersede Section 9-12-24, NDCC." Mr. Bucklin also suggested that this section be cross-referenced in the source notes. The Committee discussed this proposal. Mr. Bucklin MOVED to add Section 9-12-24, NDCC, to the cross-reference section of the source note for Rule 68, NDRCivP. Mr. Heinley seconded the motion. Motion CARRIED.

Judge Leclerc MOVED to approve the explanatory note to proposed Rule 68, NDRCivP. Justice Levine seconded the motion. Judge Burdick MOVED to adopt the following language to be added to the explanatory note on line 13, page 309 of the meeting materials: "However, depending upon the facts of a particular case a confession of judgment may be vulnerable to constitutional attack. See, D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972)." Mr. Loder seconded the motion. Motion CARRIED. The motion to approve the explanatory note to proposed Rule 68 as amended was CARRIED.

Rule 68, NDRCivP, Explanatory Note

Subdivision (a) is identical similar to Rule 68, FRCivP, except for athe provisions that the clerk may enter a judgment only upon order of the court and to allow a plaintiff to make an offer of settlement.

Subdivision (b) is similar to subdivision (a) except the defendant may tender money instead of making an offer of judgmentsettlement. Unlike the offer of judgment settlement, this can only be made in an action for the recovery of money.

Subdivision (c) authorizes a judgment by confession to be entered without commencing an action. This subdivision is the same as Chapter 28-10, NDRC 1943, which previously governed the subject. However, depending upon the facts of a particular case a confession of judgment may be vulnerable to constitutional attack. See, D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972).

Early in its history, the North Dakota Supreme Court ruled that the authority to confess judgment must be clear and explicit and must be strictly followed. Rasmussen v. Hagler, 108 N.W. 541 (N.D. 1906).


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Mr. Peterson MOVED to reject any amendments dealing with delay damages in Rule 68(c). Mr. Kautzmann seconded the motion. Motion CARRIED.

RECESS

The meeting was recessed until 12:30 p.m., May 21, 1987.

CALL TO ORDER

The meeting was called to order at 12:30 p.m., May 21, 1987, by Justice Beryl Levine, Acting Chairman.

ATTENDANCE

The role call remained the same as in the morning session, except Mr. Lamb was absent and Justice Gierke and Mr. Peterson joined the meeting by 1:00 p.m.

RULE 4(e)(2)(A) NDRCivP

The Committee discussed the procedure for service by publication. The Committee has been requested to remove the requirement that the sheriff's return state that the sheriff is unable to make personal service upon the defendant in this state. Judge Burdick indicated that this language was retained because of U.S. caselaw. Judge Glaser suggested that the language be changed to the following: "serving the summons by personal service upon the defendant in this state cannot be made." Judge Burdick indicated that this is stronger language than what is currently contained in this subsection. The Committee requested staff to research the caselaw on this subsection and also to bring a copy of the 1943 code to tomorrow's meeting for review.

RULE 8.4, NDROC

The Committee reviewed and discussed comments from the district court judges and the members of the Family Law Section concerning proposed Rule 8.4. The proposed rule and alternatives provide for a 30-day period between service of the complaint and a hearing on the merits in a divorce case and provide for a waiting period between the execution of a property agreement and appearing in court. The discussion was tabled until after the presentation regarding the hearsay exception for minor victims was completed.


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HEARSAY EXCEPTION FOR MINOR VICTIMS

The members of the Provider Services Subcommittee of the Governor's Commission on Victim's and Witnesses were invited to attend this meeting to discuss with the Committee members the need for a hearsay exception for minor victims. Members of the Committee present were Dick Gross, Chairman of the Subcommittee; Chris Nolan; Sen. Rick Maixner; Tara Muhlhauser (by conference call) and Holly Pope.

Mr. Gross distributed material (handout #8) to the Joint Procedure Committee members and gave a short presentation of the subcommittee's position. Sen. Rick Maixner also spoke as to the intent of the proposed legislative bill draft that the Legislative Council formulated at his request. However, this bill was never introduced since the Governor's Commission determined that such a hearsay exception should be addressed by rule rather than by statute.

Judge Leclerc pointed out that the court can now accept such hearsay statements under Rule 801(24), NDREv. However, it may be that some judges are reluctant to use the catch-all exception. Tara Muhlhauser presented her views concerning the hearsay exception for minor witnesses. Such a rule would provide for uniformity and it would also make the prosecution of child abuse cases easier. Dick Gross stated that such a rule would also protect the child victim. Judge Leclerc inquired as to whether it is appropriate for the judiciary to protect child victims or if it is more appropriate for the prosecutor, presuming of course that the child is a victim.

Mr. Kautzmann asked if any empirical studies are available that show that a child witness is more traumatized than any other witness. He indicated that

he had just attended a Federal seminar and one of the speakers at that seminar indicated that there are no empirical studies available. Mr. Gross responded that he did not know of any empirical studies that have been conducted. However, the Provider Services Subcommittee believed that children are more traumatized.

Judge Smith commented that the provider agencies need to be more objective, that they could not believe by faith that a child is telling the truth. He indicated that we have to protect the due process rights for all concerned.

Judge Burdick indicated that the National Conference of Commissioners on Uniform State Laws draft of Rule 807 entitled "Child Victims or Witnesses" has


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been an on-going project for several years. The proposed rule has been amended recently. However, he does not have the current copy of the proposal. Judge Glaser indicated that it appears that the rationale behind having a hearsay exception is the assertion that children do not lie. Judge Burdick MOVED to approve proposed Rule 807, NDREv. Mr. McLean seconded the motion. Mr. Peterson MOVED a substitute motion to table action on proposed Rule 807, NDREv, indefinitely. Mr. Kautzmann seconded the motion. The motion FAILED. Judge Smith MOVED a substitute motion to postpone action on Rule 807, NDREv, until the next meeting. Mr. Heinley seconded the motion. Motion CARRIED. Staff was requested to obtain the up-dated text of Rule 807.

RULE 8.4, NDROC (cont'd)

Judge Burdick MOVED to approve alternative proposed Rule 8.4 on page 92 of the meeting materials. Judge Leclerc seconded the motion. This rule would only apply to a waiting period after the execution of a property settlement and would not cover custody, support, or visitation agreements. Several members of the Committee felt that the alternative rule was not expansive enough. Mr. Kautzmann stated that he did not believe that there is a problem that needs to be addressed by the alternative rule. Judge Hilden indicated that the decision in Hill v. Hill should have alerted the judges in this state of the problem when a party executes a property agreement without being represented by counsel. Mr. Loder spoke out against the rule. He indicated that many agreements are negotiated one hour before a hearing and one or the other party may not want to appear in court. He stated that the fact scenario in the Hill case was not the usual run-of-the-mill. Motion FAILED.

Judge Leclerc MOVED to take no action on adopting a rule which set time limits on property agreements in divorce cases. Ms. Schmitz seconded the motion. Motion CARRIED.

RULE 47(a), NDRCivP

Mr. Peterson had suggested at a prior meeting that the rules concerning the examination of jurors be amended so that there would be a uniform procedure throughout the state.

Judge Glaser questioned whether the court would be allowed to conduct singular examination of jurors on its own motion. The rule appears to indicate


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that singular examination of prospective jurors in chambers may only be done upon motion from the parties or their counsel. Judge Glaser also questioned how alternate jurors would be dealt with under the proposed rule. The Committee discussed these points at length. Mr. Peterson suggested the following language which would take care of alternate jurors: "A venire of prospective jurors equal to the size of the jury to be used and the number of peremptory challenges which will be allowed will be called for examination." The Committee discussed this language and agreed that it would be better not having a certain number of prospective jurors called for examination. Judge Glaser pointed out that this should not become a comparative process in selecting jurors. Judge Burdick stated that the Committee should not approve a rule that forces the exercise of peremptories. Several members of the Committee disagreed with Judge Burdick that the rule forces the exercise of peremptories. This is not occurring in Cass County where this method is currently being used.

The Committee also discussed the problem in calling a large group of prospective jurors because many courtrooms across the state are not equipped to handle 32 or 42 people which could possibly be called in a criminal action. It was pointed out that often times the number of jurors and the number of peremptories will be more than 24. However, this is not limiting language. It is up to the discretion of the court to seat 32 jurors, for example. Mr. Bucklin MOVED to amend the first sentence of proposed Rule 47, NDRCivP, to read: "An initial venire of the number equal to the number of jurors necessary for the jury plus the number of peremptory challenges available to the parties (but in the discretion of the court not more than 24) will be called for examination." Mr. Peterson seconded the motion.

The Committee discussed the fact that there are currently two other committees that are looking into the Rules of Procedure governing jurors. However, the Committee did not feel that this should prevent them from amending the current rules.

Mr. Peterson stated that there are two substantial reasons for proposed Rule 47 which provides for a uniform jury selection and those reasons are as follows: (1) that it takes less time to select a jury and (2) it gives the trial lawyers six informed peremptory challenges rather than five.

Judge Burdick MOVED to amend Mr. Bucklin's motion to provide for 21 jurors rather than 24. Motion


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died for lack of second. Mr. Bucklin's motion CARRIED (hand vote 10-5).

Mr. Bucklin MOVED to adopt the rule as amended and to delete on lines 10-11 "upon motion from the parties or their counsel" and to overstrike on line 8 "or by their counsel" and to delete on lines 15-16 "for their counsel" and on line 6 to overstrike "or their attorneys". It was discussed whether the sentence appearing on lines 11-14 should be deleted. That sentence reads as follows: "Jurors that are chosen may be excused to the jury room until all jurors have been selected through the examination process." This amendment was accepted by Mr. Bucklin and is included in his motion. It was discussed whether additional language should be added to the rule at line 13 "unless they are retained as alternate jurors". After discussion, it was felt that it was not necessary to include that language as the proper number of jurors would include the panel and alternates. However, it was suggested that the word "proper" on line 18 be deleted and the word "necessary" be inserted in lieu thereof. Mr. Bucklin again accepted that amendment into his original motion. Question was called. Mr. Kautzmann MOVED to close debate. Mr. Heinley seconded the motion. Motion FAILED. Judge Burdick then questioned how the peremptory challenges are to be exercised. He felt that that should be addressed in the rule. It was pointed out that that is currently addressed in subsection (b) of Rule 47. Mr. Lamb MOVED to close debate. Mr. Kautzmann seconded the motion. Mr. Bucklin's motion was CARRIED.

RECESS

The meeting was recessed until 8:30 a.m., May 22, 1987.

CALL TO ORDER

The meeting was called to order at 8:40 a.m., May 22, 1987, by Justice H. F. "Sparky" Gierke, Chairman.

ATTENDANCE

The roll call remained the same as in the morning session of May 21, 1987, except that Mr. Lamb was absent.


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RULE 47 (a) NDRCivP (cont'd)

Proposed Rule 47(a), NDRCivP, was redrafted in light of the amendments made at yesterday's meeting. This proposed rule is contained in handout #4.

Judge Burdick indicated that the sentence appearing on lines 12-14 which reads: "The court has the discretion to allow singular examination of prospective jurors in chambers." be moved to the end of the rule and also that the last sentence under the rule be amended to read: "If, after the parties have exercised their challenges, the venire size is larger than the number required under Rule 48, the excess number of jurors will be excused in inverse order in which they were called." Judge Kosanda MOVED these amendments and Judge Leclerc seconded the motion. Motion CARRIED.

Mr. McLean indicated that the parenthetical language on lines 4-5 should be deleted and suggested the following language in sentence form: "In the discretion of the court, this method may be used when the venire panel is more than 24." Judge Burdick suggested that the first sentence be amended to read as follows: "The court shall call for examination an initial venire of prospective jurors of a number at least equal to the number of jurors necessary for the court plus the number of peremptory challenges available to the parties." Mr. McLean pointed out that this language is much more vigorous than the language suggested by Mr. Bucklin and approved by the Committee yesterday. Mr. Bucklin's language was more compromising.

Mr. Peterson MOVED the language suggested by Judge Burdick as an amendment to Rule 47(a). Judge Leclerc seconded the motion. Motion CARRIED.

Mr. Bucklin MOVED to approve Rule 47(a) as amended. Ms. Schmitz seconded the motion. Judge Glaser commented that this is now a very rigid rule and that it does not give a judge discretion in trying to select a jury in a reasonable manner. There will be situations when this method will not work.

Mr. Peterson MOVED a substitute motion to amend Rule 47(a) and to include the following language at the end of the first sentence: "If the initial venire exceeds 24, the court may vary this procedure." Mr. Bucklin seconded the motion and withdrew his motion to approve Rule 47(a). It was noted that the explanatory note should contain a simple explanation of what the Committee intends this rule to accomplish. It


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should be noted in the explanatory note that this procedure is discretionary with the court when there are 24 or more members of the initial venire and that other methods of jury selection may then be used. Motion CARRIED.

Judge Leclerc MOVED to delete the words "at least" in the first sentence as amended. That sentence would then read: "The court shall call for examination an initial venire of prospective jurors of a number equal to the number of jurors necessary for the jury plus the number of peremptory challenges available to the parties." Judge Kosanda seconded the motion. Motion CARRIED. Judge Kosanda MOVED to approve Rule 47(a) as amended. Mr. Peterson seconded the motion. Motion CARRIED.

Rule 47(a), NDRCivP

(a) Examination of Jurors. The court shall call for examination an initial venire of prospective jurors of a number equal to the number of jurors necessary for the jury plus the number of peremptory challenges available to the parties. If the initial venire exceeds 24, the court may vary this procedure. A general examination of prospective jurors is optional with the trial judge, but any examination by the trial judge does not in any manner limit the right of the parties or their attorneys to conduct the examination. If the examination is not conducted by the judge it shall be conducted by the parties or by their counsel. If, after the parties have exercised their challenges, the venire size is larger than the number required under Rule 48, the excess number of jurors will be excused in inverse order in which they were called. The court has the discretion to allow singular examination of prospective jurors in chambers.

PROPOSED ADMINISTRATIVE RULE FOR THE TEMPORARY COURT OF APPEALS

Judge Leclerc MOVED to recommend by letter to the Supreme Court that in regard to the proposed administrative rule on the Temporary Court of Appeals that Sections 5, 7(b), 9(a), 10, 11, 12, 13(c)(3), 14(c), and 15 be addressed by the Rules of Procedure. Mr. Bucklin seconded the motion. Motion CARRIED.

Mr. Bucklin MOVED to amend Section 5 to read as follows: "Except as otherwise provided in these rules, all proceedings in the Court of Appeals are covered by the North Dakota Rules of Appellate Procedure." Mr. Peterson seconded the motion. Motion CARRIED.


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The Committee then discussed Section 7(b) which provides that the chief judge may issue interlocutory orders in procedural matters on behalf of the Court of Appeals. The Committee discussed the problems with interlocutory orders, discussed whether or not it would be permissible for one judge to grant an interlocutory order or if all three judges were necessary. Suggested language included: "In cases assigned to the Court of Appeals, the chief judge may issue interlocutory orders in procedural matters, but any judge of the court may issue on behalf of the panel original and remedial writs necessary to properly exercise its jurisdiction including temporary orders."

Mr. Bucklin MOVED to further amend Section 5 to provide at the end of that section the following sentence: "The terms 'court' or 'justice' as used in those rules means the judges or a judge respectively of the Court of Appeals." Mr. McLean seconded the motion. Motion CARRIED.

SECTION 5. Procedural Rules

Insofar as applicable, the North Dakota Rules of Appellate Procedure apply to all proceedings in the Court of Appeals Except as otherwise provided in these rules, all proceedings in the Court of Appeals are covered by the North Dakota Rules of Appellate Procedure. The terms 'court' or 'justice' as used in those rules means the judges or a judge respectively of the Court of Appeals.

Mr. Bucklin MOVED to amend Section 7(b) to read: "In cases assigned to the Court of Appeals, the chief judge may issue orders in procedural matters." Judge Leclerc seconded the motion. Motion CARRIED.

SECTION 7. Chief Judge

(a) * * *

(b) The chief judge may issue interlocutory orders in procedural matters on behalf of the Court of Appeals in cases assigned to the Court of Appeals Incases assigned to the Court of Appeals, the chief judge may issue orders in procedural matters.

Judge Leclerc MOVED to delete the last sentence of Section 9(a) which reads: "There may be no separate filings directed to or filed with the Court of Appeals by litigants." Mr. Kautzmann seconded the motion. Motion CARRIED. Judge Leclerc MOVED to approve Section 9(a) as amended. Mr. Bucklin seconded the motion. Motion CARRIED.


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SECTION 9. Case Filings

(a) All motions, petitions, briefs, and other appellate documents must be filed with the clerk of the Supreme Court pursuant to the North Dakota Rules of Appellate Procedure. There may be no separate filings directed to or filed with the Court of Appeals by litigants.

(b) * * *

(c) * * *

The Committee then reviewed Section 10. Judge Smith MOVED that Section 10 be restored to the administrative rule and not be recommended as a procedural rule to the Supreme Court. Judge Burdick seconded the motion. Motion CARRIED.

Mr. Bucklin indicated that it may be appropriate, in light of Section 10(e), that Rule 28(a)(3), NDRAppP, be amended to add: "; and a statement whether the case falls within any of the categories of Section 10(e) of the administrative rule and if so which category." Mr. Bucklin indicated that this may help the reviewer in screening the case when determining if it should be sent to the Court of Appeals or to the Supreme Court. The Committee decided to review this issue at a later date.

Handout #5 was distributed to the Committee members for review. This handout contains a suggested amendment by Judge Burdick to Section 11. The amendment reads as follows: "The Supreme Court may reassign a case from the Court of Appeals to the Supreme Court at any time before the case is argued in the Court of Appeals or, after argument and before an opinion is filed, if all parties to the appeal consent. Upon entry of an order reassigning a case, the Court of Appeals may take no further action in the case." Judge Burdick MOVED to adopt Section 11 as amended. Mr. Loder seconded the motion. Motion FAILED. Judge Leclerc MOVED to restore this section to the administrative rule. Ms. Schmitz seconded the motion. Motion CARRIED.

Mr. Peterson indicated that there should be a provision in the rule similar to Section 29-15-21, NDCC, so that a party may challenge a judge on the appellate panel. It was pointed out that this would complicate the process of selecting judges to serve on the appellate panel. Mr. Peterson MOVED to incorporate into the administrative rule Section 29-15-21, NDCC, in order to allow for a demand for change of judge. Ms. Schmitz seconded the motion. Motion FAILED. Judge


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Glaser MOVED to recommend to the Supreme Court that Section 29-15-21, NDCC, be amended to include the Intermediate Appellate Court. Mr. Kautzmann seconded the motion. Motion CARRIED. Judges Burdick, Leclerc, and Smith asked that their votes be recorded as no.

Mr. Bucklin MOVED to amend Rule 12 as follows: "There shall be no petition for rehearing. Appellate Rule 40 does not apply to the Court of Appeals." Mr. Loder seconded the motion. Motion FAILED. Judge Burdick MOVED to approve Section 12 with the following amendment: "Any party to a proceeding in the Court of Appeals may petition the Court for a rehearing pursuant to Rule 40, NDRAppP." Judge Leclerc seconded the motion. Motion CARRIED.

SECTION 12. Petition for Rehearing

Any party to a Court of Appeals proceeding may petition the Court of Appeals for a rehearing pursuant to Rule 40, NDRAppP. The Court of Appeals shall dispose of the petition Any party to a proceeding in the Court of Appeals may petition the Court for a rehearing pursuant to Rule 40, NDRAppP.

The Committee reviewed Section 13 which provides for a review by the Supreme Court. Mr. Peterson questioned whether a majority of the justices of the Supreme Court was necessary to grant a petition for review from a judgment or order of the Court of Appeals. He also questioned whether the rule should contain "special and important reasons" in order to petition for a review. Mr. Peterson MOVED to delete the words "a majority" and insert in lieu thereof "at least 2". Mr. Kautzmann seconded the motion. Motion CARRIED. Judge Burdick MOVED to delete "when there are special and important reasons and" and insert in lieu thereof the word "if". Judge Leclerc seconded the motion. Motion CARRIED. Judge Leclerc MOVED to delete the word "may" in the first sentence and insert the word "shall". Mr. McLean seconded the motion. Motion CARRIED.

Mr. Peterson MOVED to delete "Supreme Court's" on line 6 of subdivision (c) and insert in lieu thereof the word "justices". Mr. Kautzmann seconded the motion. Motion FAILED. Judge Burdick MOVED to amend Section 13(c)(3) to delete the word "previous" in the second line of subsection (3) and insert in lieu thereof the word "published." Mr. Loder seconded the motion. Motion CARRIED. Judge Burdick MOVED to amend Section 13(c) on lines 5-6 to delete "while neither controlling nor fully measuring the


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Supreme Court's discretion" and insert in lieu thereof the words "among others." Judge Glaser seconded the motion. Motion CARRIED. Judge Leclerc MOVED to approve Section 13(c)(3) as amended. Judge Burdick seconded the motion. Motion CARRIED.

SECTION 13. Review by Supreme Court

(a) * * *

(b) * * *

(c) The Supreme Court may shall grant a petition for review from a judgment or order of the Court of Appeals when there are special and important reasons and if a majority at least 2 of the justices of the Supreme Court direct that the petition be granted. The following criteria, while neither controlling nor fully measuring the Supreme Court's discretion among others, will be considered in the exercise of the court's discretion:

(1) * * *

(2) * * *

(3) whether the Court of Appeals has rendered a decision in conflict with a previous published decision of the Court of Appeals;

(4) * * *

(5) * * *

(6) * * *

(d) * * *

Mr. Peterson MOVED that Section 14(c) be amended to read: "Opinions of the Court of Appeals must be published." Ms. Schmitz seconded the motion. Mr. McLean pointed out that we could use the method that the Eighth Circuit employs whereby a party cannot cite to a case if it is not published. Mr. Peterson indicated that all opinions of the Court of Appeals should be published. Motion CARRIED. Judge Leclerc MOVED to approve Section 14 (c) as amended. Judge Hilden seconded the motion. Motion CARRIED.

SECTION 14. Judgments, Opinions and Mandates

(a) * * *

(b) * * *

(c) An opinion of the Court of Appeals may be published only when it satisfies one of the following standards.

(1) Establishes a new rule of law or alters or modifies an existing law;

(2) Involves a legal issue of continuing public interest;


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(3) Criticizes or explains existing law;

(4) Applies an established rule of law to a factual situation significantly different from that in published opinions of this state;

(5) Resolve an apparent conflict of authority; or

(6) Constitutes a significant and nonduplicative contribution to legal literature. Opinions of the Court of Appeals must be published.

Judge Burdick MOVED to approve Sections 5, 7(b), 9(a), 12, 13(c)(3), and 14(c) as amended and to recommend their adoption as procedural rules to the Court. Mr. Kautzmann seconded the motion. Motion CARRIED.

FINAL ACTION ON PROPOSED RULES

Mr. Kautzmann MOVED to recommend the proposed Rules of Civil Procedure, Criminal Procedure, Appellate Procedure and the Rules of Court contained in handout #6 to the Supreme Court for adoption with suggested style changes by Judge Burdick. Ms. Schmitz seconded the motion. Motion CARRIED.

Judge Leclerc MOVED to recommend to the Supreme Court for adoption Rules 45, NDRCivP, and Explanatory Note, Rule 68(b) NDRCivP, and Explanatory Note, and Rule 47(a), NDRCivP, and Explanatory Note with the amendment explaining when the procedure may be varied. Ms. Schmitz seconded the motion. Motion CARRIED.

RULE 24(a), NDRCrimP

Handout #7 reflects the amended changes to proposed Rule 24(a). It was pointed out that on line 11 the number "48" should be deleted and the number "23" inserted in lieu thereof, on line 12 the word "to" should be deleted and the word "in" inserted in lieu thereof, and on lines 12-13 to delete "has the discretion to" and insert in lieu thereof the word "may". Mr. Peterson indicated that the initial venire for the civil rule was 24. However, for Rule 24 it should be a higher number due to the fact that in felony cases each side has 10 peremptories so we could have up to 32 jurors and in felony murder cases there are 15 on each side so there is a total of 42. The Committee decided to delete "24" on line 5 and insert the number "35". Judge Leclerc MOVED to move the sentence beginning on line 6 and ending on line 8 to


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the end of the Rule. Judge Burdick seconded the motion. Motion CARRIED. Mr. Peterson MOVED approval of Rule 24(a), NDRCrimP, as amended. Judge Leclerc seconded the motion. Motion CARRIED. The rule would read as follows:

(a) Examination of Jurors. The court shall call for examination an initial venire of prospective jurors equal to the number of jurors necessary for the jury plus the number of peremptory challenges available to the parties. If the initial venire exceeds 35, the court may vary this procedure. If, after the parties have exercised their challenges, the venire size is larger than the number required under Rule 23, the excess number of jurors will be excused in inverse order in which they were called. The court may allow singular examination of prospective jurors in chambers. The court shall permit the defendant or the defendant's attorney and the prosecuting attorney to participate in the examination of prospective jurors.

Mr. Peterson MOVED to approve Rule 24, NDRCrimP, as amended. Judge Leclerc seconded the motion. Motion CARRIED. Mr. Peterson MOVED that the explanatory note be approved with the similar amendment to Rule 47, NDRCivP, explaining to the practitioner when the procedure may be varied. Judge Leclerc seconded the motion. Motion CARRIED. Judge Leclerc MOVED to recommend to the Supreme Court Rule 24(a), NDRCrimP, and Explanatory Note for adoption. Ms. Schmitz seconded the motion. Motion CARRIED.

RULE 31(c), NDRAppP

The Committee reviewed handout #3 which contained a letter from Justice VandeWalle with accompanying documents. Ms. Schmitz MOVED to accept Justice VandeWalle's amendment to Rule 31(c), which reads: "(c) Consequences of Failure to File Briefs. If an appellant fails to file his a brief within the time provided by this rule, or within the time as extended, an appellee may move for dismissal of the appeal. If an appellee fails to file his brief, he will not be heard at oral argument except by permission of the court. If an appellee fails to file an appropriate brief, sanctions may be imposed pursuant to Rule 13 which may include refusal to be heard at oral argument."

Judge Smith seconded the motion. Motion CARRIED. Judge Smith MOVED to recommend Rule 31(c), NDRAppP, to the Supreme Court for adoption with a statement


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explaining the action taken in the explanatory note. Mr. Kautzmann seconded the motion. Motion CARRIED.

RULE 5(d)(1), NDRCivP

Judge Glaser submitted a request to amend Rule 5, NDRCivP, to conform to Rule 6.4 of the North Dakota Rules of Court. This would provide a time certain to be set for the return of discovery materials and a procedure for their disposition that would be consistent with the handling of exhibits. Mr. Bucklin MOVED to approve proposed Rule 5(d)(1), NDRCivP. Mr. McLean seconded the motion. The Committee discussed several style changes. On line 19 to delete "any one or all of the above stated" and insert in lieu thereof "a filed", to change documents to the singular form, and to insert the word "within" after the word "document." On line 20, to delete "accept return" and insert in lieu thereof "do so". Line 21, to change the word documents to the singular form, to insert "by order" after the word "court". Place a "." after the word "direct" and delete the word "by" after the word "direct". On line 22, to delete "order." Mr. Bucklin withdrew his motion.

Judge Leclerc MOVED to approve proposed Rule 5(d)(1), NDRCivP, with the amended language. Judge Burdick seconded the motion. Motion CARRIED. Ms. Schmitz MOVED to recommend to the Supreme Court that proposed Rule 5(d)(1), NDRCivP, be adopted and that staff counsel has the authority to prepare an explanatory note to be submitted with the rule to the Supreme Court. Mr. McLean seconded the motion. Motion CARRIED.

Rule 5(d)(1), NDRCivP

(d) Filing. * * *

(1) Unless otherwise provided by statute, these rules or by order of the court, all pleadings, affidavits, bonds and other papers in an action must be filed with the clerk at or prior to the time of the filing of the note of issue. A party may not file discovery materials with the clerk unless the materials are to be submitted to the court for disposition of a pending motion, the court orders them to be filed, or a party certifies that the filing is necessary for safekeeping of the papers or exhibits pending completion of the case. A party certifying that safekeeping is necessary shall state the reasons necessary for safekeeping. The clerk shall return all filed depositions, interrogatories, requests for admission, requests for interrogatories, requests for


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production of documents, and answers and responses thereto, to the filing party upon final disposition of an appeal or, if no appeal is filed, upon expiration of the time for appeal. If the filing party does not claim a filed document within sixty (60) days after being notified to do so, the clerk may dispose of the document as the court by order may direct. The clerk shall take a receipt for all documents returned.

ANATOMICALLY CORRECT DOLLS

Judge Burdick MOVED to approve the proposed explanatory note to Rule 611. Ms. Schmitz seconded the motion. The new language indicates that anatomically correct dolls may be used while a child witness is testifying as long as proper foundation is used and as long as it is relevant. It was suggested at the last meeting that this note be placed following Rule 403, NDREv, which deals with relevancy. However, the comment was placed in the explanatory note to Rule 611, NDREv, as it deals with the mode and order of presenting evidence and because Rule 611 was referred to in State v. Jenkins, a child abuse case. However, Mr. Peterson indicated that Rule 611 may not be the proper place. He felt that practitioners would check the 400 rules on relevancy in determining whether an anatomically correct doll may be used.

Judge Burdick withdrew his motion and suggested the following language to be placed in the note: "The trial judge may allow a child witness to use an anatomically correct doll if a proper foundation is laid. The doll may not be used in a suggestive manner and the nonverbal testimony must be relevant." Mr. McLean suggested that the Jenkins case be cited in the note. Mr. Peterson MOVED to approve the explanatory note with the language change as suggested by Judge Burdick and to include the citation to the Jenkins case. Mr. McLean seconded the motion. Motion CARRIED.

Ms. Schmitz MOVED to recommend to the Supreme Court the adoption of the explanatory note to Rule 611, NDREv. Mr. Kautzmann seconded the motion. Motion CARRIED.

RULE 611, NDREv, Explanatory Note

Rule 611 is substantially the same as Rule 611 of the Federal Rules of Evidence. The rule gives the court wide discretion over the mode and order of presenting evidence. This comports with established North Dakota case law. See Killmer v. Duchscherer, 72 N.W.2d 650 (N.D. 1955).


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The trial judge may allow a child witness to use an anatomically correct doll if a proper foundation is laid. The doll may not be used in a suggestive manner and the nonverbal testimony must be relevant. See, State v. Jenkins, 326 N.W.2d 67 (N.D. 1982).

ADJOURNMENT

The meeting was adjourned at 1:30 p.m. The next meeting will tentatively be held at the end of September 1987.

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Sandy Demianew, Secretary