Joint Procedure Committee Meeting

Scheduled on Thursday, May 25, 1978 @ 2:00 PM

MINUTES OF MEETING

Joint Committee of the Judicial Council
and the State Bar Association
Joint Procedure Committee

May 25-26, 1978

CALL TO ORDER

The meeting was called to order at 1:00 p.m., May 25, 1978, by Justice Paul M. Sand, Chairman.

ATTENDANCE

Present:

Hon. Eugene A. Burdick
Hon. Kirk Smith
Mr. Leonard H. Bucklin
Mr. Kent Higgins
Mr. David Peterson

Absent:

Hon. Gerald G. Glaser
Hon. James O'Keefe
Hon. Larry Hatch
Hon. R. C. Heinley
Hon. Halvor L. Halvorson
Hon. William S. Murray
Hon. Robert Vogel
Mr. Harry Pearce
Mr. Jon M. Arntson
Mr. Larry Kraft
Mr. LeRoy A. Loder
Mr. Timothy Q. Davies
Mr. James L. Lamb
Mr. Calvin N. Rolfson

Staff Present:

Joel W. Gilbertson
Eveleen Klaudt

APPROVAL OF MINUTES

Judge Burdick MOVED to dispense with the reading of the Minutes and that they be adopted, with an amendment showing Mr. Higgins as present. Mr. Higgins seconded the motion. Motion CARRIED.

RULE 47, NDRCivP

Judge Burdick MOVED to reconsider the adoption of Rule 47(b), NDRCivP. Mr. Higgins seconded the motion. Motion CARRIED.

Judge Burdick MOVED to amend Rule 47(b), line 19, as follows: Delete "The" and insert "All"; after the word "parties" add "on a side". Mr. Bucklin seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt Rule 47, NDRCivP, as amended. Mr. Bucklin seconded the motion. Motion CARRIED.


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JURORS

(a) Examination of Jurors.

The trial judge, at his option, may conduct any general examination of prospective jurors he deems proper, 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.

(b) Peremptory Challenges.

Each side is entitled to 6 peremptory challenges in a 12-person jury and 3 peremptory challenges in a 6-person jury. If a side consists of more than one party, that side is entitled to a total of 6 peremptory challenges in a 12-person jury and 3 peremptory challenges in a 6-person jury. All parties on a side must join in the challenge before it can be made unless the trial judge, for good cause shown, permits otherwise. If parties on a side have essentially adverse or antagonistic interests the trial judge, in his discretion, may grant the parties on that side additional peremptory challenges. If no peremptory challenges are taken until the panel is full, they must be taken by the parties alternately, commencing with the plaintiff; but a waiver as to the jurors then impaneled is not a waiver of the right to challenge jurors subsequently impaneled.

(c) Challenges for Cause.

If the trial judge, after examination of any juror by himself or either side, is of the opinion that grounds for challenge for cause are present, the judge should excuse that juror from the trial of the case. If the judge does not excuse the juror, any party may challenge the juror for cause as provided by law.

(d) Alternate Jurors.

The court may direct that one or 2 jurors in addition to the regular panel be called and impaneled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. Alternate jurors shall be drawn in


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the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the principal jurors. An alternate juror who does not replace a principal juror shall be discharged after the jury retires to consider its verdict. If one or 2 alternate jurors are called each party is entitled to one peremptory challenge in addition to those otherwise allowed by this rule. The additional peremptory challenge may be used only against an alternate juror, and the other peremptory challenges allowed by this rule shall not be used against the alternates.

RULE 3, NDRAppP.- Procedure Committee Notes

A style change was recommended: the words "if applicable" should read "if any."

The federal rules governing appeal as of right are adopted for general use because the appeals by permission contemplated by federal practice are absent from our appellate structure. Rule 3, F.R.App.P., is substantially adopted in this rule. Nothing other than the timely filing of the notice of appeal in the trial court is required to give the Supreme Court jurisdiction over the appeal. After the party files the notice, the clerk mails copies to the Clerk of the Supreme Court and to the opposing parties. For the service of other papers these rules place the responsibility of service on counsel rather than the Clerk.

It should be noted that Rule 10(b) requires that proof of service of the order for transcript and a copy of the stipulation of excluded portions, if any, be filed with the notice of appeal. Rule 12(a) requires that the docket fee accompany the filing of the notice of appeal, and Rule 7 requires that a bond for costs or equivalent security be filed with the notice of appeal in civil cases.

Subdivision (a) provides that failure to follow any Rule may result in dismissal of the appeal, the award of costs, or other appropriate action. For a brief summary of many of the cases decided by the North Dakota Supreme Court on this subject, see Gerhardt v. Fleck, 251 N.W.2d 764, 766-767 (N.D. 1977).

RULE 7, NDRAppP - Procedure Committee Notes

Where the words "if applicable" appear they should be changed to "if any."


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Judge Smith MOVED to adopt the Procedure Committee Notes with the changes made. Mr. Bucklin seconded the motion. Motion CARRIED.

This rule incorporates the bond for costs into the Appellate Rules rather than the statutes. The amount of the bond is the same under this adaptation of Rule 7, F.R.App.P., as under former § 28-26-09, N.D.C.C.

Unless the appellant falls within one of the listed exceptions, Rule 7 requires that a bond for costs or equivalent security be filed with the notice of appeal in civil cases. The rules does not preclude the filing of a supersedeas bond and a bond for costs in the same bond. [See Rule 8.]

Rule 10(b) requires that proof of service of the order for transcript and a copy of the stipulation of excluded portions, if any, be filed with the clerk of the trial court with the notice of appeal. Rule 12(a) requires that the docket fee accompany the filing of the notice of appeal. Thus in most civil cases the filing of the notice of appeal, the bond for costs or equivalent security, proof of service of the order for transcript, the stipulation of excluded transcript portions, if any, and payment of the docket fee must occur at the same time.

Although filing the bond for costs or equivalent security is not required to invoke the jurisdiction of the Supreme Court and does not affect the validity of the appeal, Rule 3(a) provides that failure of the appellant to take this step is grounds for such action as the Supreme Court deems appropriate, which may include dismissal of the appeal. [See, e.g., Community Hospital v. Olson, 246 N.W.2d 91 (N.D. 1976).]

RULE 7, NDRAppP

Mr. Higgins MOVED to reconsider the adoption of Rule 7, NDRAppP. Judge Burdick seconded the motion. Motion CARRIED.

Mr. Higgins MOVED to amend Rule 7, NDRAppP, lines 2 through 4 to read as follows: "Unless (1) an appellant is exempted by law, (2) the appellant has filed a supersedeas bond or other undertaking which includes security for the payment of costs on appeal, or (3) the appellee waives the requirement in civil cases . . .", and when so amended that Rule 7, NDRAppP, be adopted. Judge Smith seconded the motion. Motion CARRIED.


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RULE 7. Bond for Costs on Appeal in Civil Cases.

Unless (1) an appellant is exempted by law, (2) an appellant has filed a supersedeas bond or other undertaking which includes security for the payment of costs on appeal, or (3) the appellee waives the requirement, in civil cases a bond for costs on appeal or equivalent security shall be filed by the appellant with the clerk of the trial court with the notice of appeal; but security shall not be required of an appellant who is not subject to costs. The bond or equivalent security shall be in the sum or value of $250 unless the trial court fixes a different amount. A bond for costs on appeal shall have sufficient surety, and it or any equivalent security shall be conditioned to secure the payment of costs if the appeal is finally dismissed or the judgment affirmed, or of such costs as the supreme court may direct if the judgment is modified. The bond must show the place of residence of each surety. If a bond or equivalent security in the sum or value of $250 is given, no approval thereof is necessary. After a bond for costs on appeal is filed, an appellee may raise for determination by the clerk of the trial court objections to the form of the bond or to the sufficiency of the surety. The provisions of Rule 8(b) apply to a surety upon a bond given pursuant to this rule.

RULE 8, NDRAppP - Procedure Committee Notes

Mr. Higgins MOVED the adoption of the Procedure Committee Notes to Rule 8, NDRAppP. Judge Burdick seconded the motion. Motion CARRIED.

Derived from Rule 8, F.R.App.P., this rule provides a clear statement of the procedure for obtaining a stay or similar relief with respect to the action of the court, pending appeal. The previous appellate practice rules provided no clear definition of this matter, except as to the statutes governing stays in criminal cases. Subdivision (c) assures that the procedure for stays in criminal matters is consistent with Rule 38, North Dakota Rules of Criminal Procedure. In this rule the authority of a single justice to act on procedural matters is first mentioned. These rules contemplate that many applications for procedural relief may be handled by a single justice, with substantial savings in time and reduction of the actions requiring a quorum of the Court.


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RULE 9, NDRAppP, and Procedure Committee Notes

Judge Burdick MOVED to amend Rule 9, NDRAppP, by striking the word "shall" on line 14. Mr. Bucklin seconded the motion. Motion CARRIED.

Mr. Higgins MOVED to adopt Rule 9, NDRAppP, and the Procedure Committee Note, as amended. Judge Burdick seconded the motion. Motion CARRIED.

RULE 9. Release in Criminal Cases.

(a) [Reserved for future use.]

(b) Release Pending Appeal from a Judgment of Conviction.

Application for release after a judgment of conviction shall be made in the first instance in the trial court. If the trial court refuses release pending appeal, or imposes conditions of release, the court shall state in writing the reasons for the action taken. Thereafter, if an appeal is pending, a motion for release, or for modification of the conditions of release, pending review may be made to the supreme court or to a justice thereof. The motion shall be determined promptly upon such papers, affidavits, and portions of the record as the parties present and after reasonable notice to the appellee. The supreme court or a justice thereof may order the release of the appellant pending disposition of the motion.

Procedure Committee Notes

Taken from Rule 9, F.R.App.P., this rule incorporates a procedure for post-conviction relief in criminal proceedings but omits the federal procedure for appeal of an order refusing pre-conviction release, because there is no authority or precedent for these appeals under North Dakota practice. It is identical to Rule 46(d), N.D.R.Crim.P.

The North Dakota Supreme Court has stated that on a motion for release pending appeal under this rule, the defendant is entitled to release only if it appears

"(1) that the appeal is not frivolous, (2) that the appeal is not taken for the purpose of delay, (3) that there is sufficient reason to believe that the conditions of release will reasonably assure that the defendant


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will not flee, and (4) there is sufficient reason to believe that the defendant does not pose a danger to any other person or to the community." State v. Azure, 241 N.W.2d 699, 700 (N.D. 1976).

RULE 10, NDRAppP - Procedure Committee Notes

Mr. Bucklin MOVED to adopt the Procedure Committee Notes on Rule 10, NDRAppP, with style changes. Judge Burdick seconded the motion. Motion CARRIED.

This rule abolishes the former concepts of the "judgment roll" and the "settled statement of the case." In the ordinary case, no formal approval of the transcript by the trial court or the parties is necessary.

Numerous changes to Rule 10 were made in 1978. Basically, the changes are intended to (1) specify the duties of counsel and reporters in the area of preparation of the transcript, and (2) shorten the time period between the filing of the notice of appeal and the filing of the transcript. Most of subdivisions (b) and (c) is derived from Rule 3.03, Kansas Rules of the Supreme Court.

Subdivision (b) contains three notable changes from former practice. The first change requires that only one copy of the transcript be filed in the Supreme Court, rather than three as previously required. The second change requires that an order for a complete transcript unless all parties stipulate as to portions of the transcript which are not required. This eliminates problems of having numerous portions of the transcript ordered at different times with various completion deadlines. If a party unreasonably refuses to stipulate to exclude portions of the transcript unnecessary for the appeal, the party opposing the stipulation may obtain a court order requiring that party to pay for the unnecessary parts of the transcript and reasonable attorney's fees.

The third and most significant change in subdivision (b) requires that the order for transcript be served by the appellant on the reporter before the filing of the notice of appeal. Proof of service of the order for transcript and a copy of the stipulation of excluded portions of the transcript, if a partial transcript is ordered, must be filed with the notice of appeal.

It should be noted that only the timely filing of the notice of appeal is required to


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invoke the jurisdiction of the Supreme Court. The order for transcript, a copy of the stipulation of excluded portions, if any, the bond in civil appeals [see Rule 7], and the docket fee [see Rule 12(a)] must be filed with the notice of appeal. These acts do not affect the validity of the appeal, but Rule 3(a) provides that failure of the appellant to take these steps is ground for "such action as the court deems appropriate, which may include dismissal of the appeal." Requiring these acts to be done at the time the notice of appeal is filed greatly reduces the number of time deadlines for which the attorney was responsible prior to the amendments.

Three significant changes from former practice are also found in subdivision (c). The first change requires that the transcript be completed by the court reporter within 50 days after the notice of appeal is filed, rather than 60 days after the order for transcript is received, as was formerly true. Subdivision (c) also requires that the court reporter serve copies of the transcript on the parties designated in the order for transcript. The reporter then must file one copy of the transcript and proof of service of the other copies with the Clerk of the Supreme Court. The costs of service and filing incurred by the reporter must be paid by the appellant, or other party required by court order to pay these costs.

The final change in subdivision (c) is the elimination of the bargaining procedure between appellant and reporter. The avoid undue delays in the appellate process, the reporter, within 10 days after receipt of the order for transcript or an order of the trial court under subdivision (b), may demand advance payment for the estimated cost of the transcript. If the demand is not made within that period, advance payment is waived and the reporter will receive payment upon completion of the transcript.

Subdivision (e) basically restates the pertinent provisions of § 28-18-04, N.D.C.C., which has been superseded. The last sentence is derived from Rule 83(k)(l), Idaho Rules of Civil Procedure.

RULE 11, NDRAppP - Procedure Committee Notes

Judge Burdick MOVED to adopt the Procedure Committee Notes, with style changes. Mr. Bucklin seconded the motion. Motion CARRIED.


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The duty of transmission of the record to the Supreme Court is imposed upon the clerk of the trial court. However, the appellant's counsel has the primary responsibility for assuring that there is timely transmission of the record.

As amended, Rule 11 separates the responsibilities of the trial court clerk and the reporter with regard to the record. The trial court clerk has the duty of transmitting the record, excluding the transcript, to the Clerk of the Supreme Court. The reporter, as required by Rule 10(c), is responsible for filing the transcript.

Under subdivision (a) the record is transmitted to the Supreme Court 25-30 days after the notice of appeal is filed, unless the Supreme Court requests it at another time or a party or the reporter wishes to retain the record pursuant to subdivision (c).

Subdivision (c) contains a streamlined procedure whereby an attorney or party may retain the record in the trial court for the purpose of preparing briefs, or the reporter may retain the record in the trial court for reference in completion of the transcript. The person wishing to retain the record must send a written request to the clerk of the trial court within 25 days after the notice of appeal is filed, with copies to other counsel and the Clerk of the Supreme Court.

Subdivisions (b), (d), (e) and (f) remain basically unchanged from the former rule. Subdivisions (g) and (h) were formerly found in Rule 12. It should be noted that for purposes of these rules, the transcript continues to be a part of the record, but is handled differently than the remainder of the record.

RULE 12, NDRAppP - Procedure Committee Notes

Mr. Higgins MOVED to amend the Procedure Committee Notes to Rule 12, NDRAppP, as follows: The first sentence be amended to read, "Under Rule 12(a), as amended, the statutory docket fee in civil cases must be deposited by the appellant in the trial court with the notice of appeal"; the second sentence to be deleted and the following language inserted: "See Section 27-03-05, N.D.C.C." Judge Burdick seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt the Procedure Committee Notes, as amended. Mr. Higgins seconded the motion. Motion CARRIED.

Under Rule 12(a), as amended, the statutory docket fee in civil cases must be deposited in the trial court with the notice of appeal. See


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Section 27-03-05, N.D.C.C. To eliminate administrative problems for the clerk of the trial court, a check or money order in the amount of the docket fee should be made payable to the Clerk of the Supreme Court.

It should be noted that Rules 7 and 10(b) require that the bond for costs or equivalent security in civil cases, proof of service of the order for transcript, and a copy of the stipulation of excluded transcript portions, if any, also be filed with the notice of appeal.

Although payment of the docket fee is not required to invoke the jurisdiction of the Supreme Court and nonpayment does not affect the validity of the appeal [see Rule 3(a)], subdivision (b) asserts that the appeal may be dismissed by the Supreme Court if the requirements of this rule are not followed.

The former subdivision (b), relating to filing the record, is now found in Rule 11(g). Parts of former subdivision (c) are now found in Rule 11(h).

RULE 13, NDRAppP - Procedure Committee Notes

Judge Smith MOVED to adopt the Procedure Committee Notes to Rule 13, NDRAppP. Judge Burdick seconded the motion. Motion CARRIED.

The appellate process includes not only parties and their attorneys, but also court reporters, trial court clerks, trial court judges, and others. Although Rule 13 will be used sparingly, it is necessary in order to protect the appellate process from abuse.

RULE 25, NDRAppP - Procedure Committee Notes

Mr. Higgins MOVED to adopt the Procedure Committee Notes to Rule 25, NDRAppP. Judge Burdick seconded the motion. Motion CARRIED.

This rule is derived from Rule 25, F.R.App.P. Subdivision (a) provides that generally papers are not deemed filed until they are received by the Clerk of the Supreme Court. Briefs, appendices, and transcripts are exceptions to this general rule. They are deemed filed on the day of mailing if the most expeditious form of delivery by mail other than special delivery is used. Subdivision (d) is revised to allow proof of service by affidavit, rather than the certificate required by the federal practice. This is intended to continue the present practice of proving service by an affidavit of mailing to opposing counsel at his record address.


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RULE 26, NDRAppP

Judge Burdick MOVED to adopt Rule 26, NDRAppP, as amended. Mr. Higgins seconded the motion. Motion CARRIED.

RULE 26. Computation and Extension of Time.

(a) Computation of Time.

In computing any period of time prescribed by these rules, by an order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run must not be included. The last day of the period must be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period extends until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. If the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays must be excluded in the computation. As used in this rule "legal holiday" includes all those days specified as holidays in Section 1-03-01, North Dakota Century Code, and amendments thereto.

(b) Enlargement of Time.

The supreme court for good cause shown upon motion may enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of that time; but the court may not enlarge the time for filing a notice of appeal.

(c) Additional Time After Service by Mail.

If a party is required or permitted to do an act within a prescribed period after service of a paper upon him and the paper is served by mail, 3 days must be added to the prescribed period.

RULE 26, NDRAppP - Procedure Committee Notes

Mr. Higgins MOVED to adopt the Procedure Committee Notes to Rule 26, NDRAppP. Judge Burdick seconded the motion. Motion CARRIED.

This rule is patterned upon Rule 26, F.R.App.P. Provisions of the Federal Rule with respect to petitions for allowance, applications for permission


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to appeal, and appeals from advisory agencies are omitted. The existing legislative definition of "legal holiday" is substituted for the federal definition.

RULE 27, NDRAppP

Judge Burdick MOVED to adopt Rule 27, NDRAppP, as submitted and amended. Mr. Higgins seconded the motion. Motion CARRIED.

RULE 27. Motions

(a) Content of Motions; Response; Reply.

Unless another form is elsewhere prescribed by these rules, an application for an order or other relief must be made by filing a motion for the order or relief with proof of service on all other parties. The motion must:

1. contain or be accompanied by any matter required by a specific provision of these rules governing that motion,

2. state with particularity the grounds on which it is based, and

3. set forth the order or relief sought.

If a motion is supported by briefs, affidavits, or other papers, they must be served and filed with the motion. Any party may file a response in opposition to a motion other than one for a procedural order [see subdivision (b)] within 10 days after service of the motion, but motions authorized by Rules 8, 9, and 41 may be acted upon after reasonable notice. The court may shorten or extend the time for responding to any motion.

(b) Determination of Motions for Procedural Orders.

Notwithstanding the provisions of subdivision (a), motions for procedural orders, including any motion under Rule 26(b), may be acted upon at any time, without awaiting a response thereto. Any party adversely affected by action on the motion may request reconsideration, vacation, or modification of the action.

(c) Power of a Single Justice to Entertain Motions.

In addition to the authority expressly conferred by these rules or by law, a single justice of the


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supreme court may entertain and may grant or deny any request for relief which may properly be sought by motion under these rules, except that a single justice may not dismiss or otherwise determine an appeal or other proceeding, and except that the court may provide by order or rule that any motion or class of motions must be acted upon by the court. The action of a single justice may be reviewed by the court.

(d) Number of Copies.

Seven copies of all papers relating to motions must be filed with the original, but the court may require that additional copies be furnished.

RULE 27, NDRAppP - Procedure Committee Notes

Judge Burdick MOVED to adopt the Procedure Committee Notes to Rule 27, NDRAppP. Mr. Higgins seconded the motion. Motion CARRIED.

This rule is taken from Rule 27, F.R.App.P. It contemplates that most procedural matters will be determined by a single justice of the Court. The form of all papers relating to motions should comply with the requirements of Rule 32.

RULE 29, NDRAppP, and Procedure Committee Notes

Judge Smith MOVED to adopt Rule 29, NDRAppP, as amended, and the Procedure Committee Notes. Mr. Higgins seconded the motion. Motion CARRIED.

RULE 29. Brief of an Amicus Curiae.

A brief of an amicus curiae may be filed only if accompanied by written consent of all parties, or by leave of court granted on motion or at the request of the court. The brief may be conditionally filed with the motion for leave. A motion for leave must identify the interest of the applicant and must state the reasons why a brief of an amicus curiae is desirable. Any amicus curiae shall file his brief within the time allowed the party whose position as to affirmance or reversal the amicus brief will support unless all parties otherwise consent or the court for cause shown grants leave for later filing. If the court grants leave for late filing it shall specify the time within which an opposing party may answer.


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A motion of an amicus curiae to participate in the oral argument will be granted only for extraordinary reasons.

Procedure Committee Notes

This rule is based upon Rule 29, F.R.App.P. It does omit the provision of that rule that consent of the court is not required for the state or federal government to file an amicus curiae brief.

RULE 30, NDRAppP

Judge Burdick MOVED that Rule 30 be amended as follows: Lines 7 through 17 to read: "l. a table of contents, with page references; 2. the relevant docket entries in the proceeding below; 3. any relevant portions of the pleadings, charge, findings, or opinion; 4. the judgment, order, or decision in question; and 5. any other parts of the record, including portions of the transcript, to which the parties wish to direct the particular attention of the court." Judge Smith seconded the motion. Motion CARRIED.

Judge Burdick MOVED to delete lines 129 through 132 of Rule 30, NDRAppP. Mr. Bucklin seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt Rule 30, NDRAppP, as amended. Mr. Higgins seconded the motion. Motion CARRIED.

RULE 30. Appendix to the Briefs.

(a) Duty of Appellant to Prepare and File; Contents of Appendix; Time for Filing; Number of Copies.

The appellant shall prepare and file a separately bound appendix to the briefs which must contain:

1. a table of contents, with page references;

2. the relevant docket entries in the proceeding below;

3. any relevant portions of the pleadings, charge, findings, or opinion;

4. the judgment, order or decision in question;

5. any other parts of the record, including portions of the transcript, to which the parties wish to direct the particular attention of the court.

The fact that parts of the record are not included in the appendix shall not prevent the parties or the


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court from relying on those parts.

Unless filing is to be deferred pursuant to the provisions of subdivision (c), the appellant shall serve and file the appendix with his brief. Eight copies of the appendix must be filed with the clerk, and one copy must be served on counsel for each party separately represented, unless the court by rule or order directs otherwise.

(b) Determination of Contents of Appendix; Cost of Producing.

The parties are encouraged to agree as to the contents of the appendix. In the absence of written agreement, the appellant shall serve on the appellee not later than 10 days after the date on which the transcript is filed, a designation of the parts of the record he intends to include in the appendix and a statement of the issues he intends to present for review. If the appellee deems it necessary to direct the particular attention of the court to parts of the record not designated by the appellant he shall serve upon the appellant, within 10 days after receipt of the designation, a designation of those parts. If a cross-appeal is filed, the appellee shall serve upon the appellant within this time period, a statement of the issues he intends to present in the cross-appeal. The appellant shall include in the appendix the parts thus designated. In designating parts of the record for inclusion in the appendix, the parties shall have regard for the fact that the entire record is always available to the court for reference and examination and shall not engage in unnecessary designation.

Unless the parties otherwise agree, the cost of producing the appendix shall initially be paid by the appellant, but if the appellant considers that parts of the record designated by the appellee for inclusion are unnecessary for the determination of the issues presented he may so advise the appellee and the appellee shall advance the cost of including those parts. The cost of producing the appendix shall be taxed as costs in the case, but if either party shall cause matters to be included in the appendix unnecessarily the court may impose the cost of producing those parts on the party.

(c) Alternative Method of Designating Contents of the Appendix; How References to the Record May Be Made in the Briefs When Alternative Method Is Used.

If the court shall so provide by rule for classes of cases or by order in specific cases, preparation of the appendix may be deferred until after the briefs have been filed, and the appendix may be filed 21 days


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after service of the brief of the appellee. If the preparation and filing of the appendix is thus deferred, the provisions of subdivision (b) shall apply, except that the designations referred to therein shall be made by each party at the time his brief is served, and a statement of the issues presented shall be unnecessary.

If the deferred appendix authorized by this subdivision is employed, references in the briefs to the record may be to the pages of the parts of the record involved, in which event the original paging of each part of the record shall be indicated in the appendix by placing in brackets the number of each page at the place in the appendix where that page begins. Or if a party desires to refer in his brief directly to pages of the appendix, he may serve and file typewritten or page proof copies of his brief within the time required by Rule 31(a), with appropriate references to the pages of the parts of the record involved. In that event, within 14 days after the appendix is filed he shall serve and file copies of the brief in the form prescribed by Rule 32 containing references to the pages of the appendix in place of or in addition to the initial references to the pages of the parts of the record involved. No other changes may be made in the brief as initially served and filed, except that typographical errors may be corrected.

(d) Arrangement of the Appendix.

At the beginning of the appendix there must be inserted a list of the parts of the record which it contains, in the order in which the parts are set forth therein, with references to the pages of the appendix at which each part begins. The relevant docket entries must be set forth following the list of contents. Thereafter, other parts of the record must be set forth in chronological order. When matter contained in the reporter's transcript of proceedings is set forth in the appendix, the page of the transcript at which that matter may be found must be indicated in brackets immediately before the matter set forth. Omissions in the text of papers or of the transcript must be indicated by 3 spaced periods. Immaterial formal matters

(captions, subscriptions, acknowledgments, etc.) should be omitted. A question and its answer may be contained in a single paragraph.

(e) Reproduction of Exhibits.

Exhibits designated for inclusion in the appendix may be contained in a separate volume or volumes, suitably indexed. Eight copies must be filed with the appendix and one copy must be served on counsel for


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each party separately represented. The transcript of a proceeding before an administrative agency, board, commission, or officer used in an action in the trial court is regarded as an exhibit for the purpose of this subdivision.

(f) Hearing of Appeals on the Original Record Without the Necessity of an Appendix.

The supreme court may by rule applicable to all cases, or to classes of cases, or by order in specific cases, dispense with the requirement of an appendix and permit appeals to be heard on the original record, with such copies of the record, or relevant parts thereof, as the court requires.

RULE 31, NDRAppP - Procedure Committee Notes

Judge Burdick MOVED to adopt the Procedure Committee Notes to Rule 31, NDRAppP. Judge Smith seconded the motion. Motion CARRIED.

Although based upon Rule 31, F.R.App.P., this rule differs from the Federal Rule in that the time for filing the appellant's brief commences after the transcript, not the record, is filed. If no transcript is ordered, the appellant's brief is due 40 days after the notice of appeal is filed. All briefs are filed directly with the Clerk of the Supreme Court.

Failure to file a brief within the time required may result in dismissal of the appeal under subdivision (c) and Rule 3(a). An application for extension of time is permitted by Rule 26(b), and should follow the requirements of Rule 27.

RULE 3.2, NDRAppP - Procedure Committee Notes

Mr. Bucklin MOVED to delete the second sentence of the Procedure Committee Notes to Rule 32, NDRAppP. Judge Smith seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt the Procedure Committee Notes to Rule 32, NDRAppP, as amended. Judge Smith seconded the motion. Motion CARRIED.

This rule is derived from Rule 32, F.R.App.P. The use of typewritten documents is specifically approved. Only carbon copies are specifically prohibited because of their tendency to smudge and their poor legibility when many copies are required. An exception to this general prohibition is found in Rule 10(e), which permits carbon copies of the transcript. The rule permits use of any other


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process that produces a clean readable page. Most modern copying processes that produce good and permanent copies should be acceptable. Those in which the copy deteriorates or becomes less legible at a substantially faster rate than ordinary typed copy would not be approved.

RULE 35, NDRAppP - Procedure Committee Notes

Judge Burdick MOVED to adopt the Procedure Committee Notes to Rule 35, NDRAppP, with style changes. Judge Smith seconded the motion. Motion CARRIED.

Rule 35 represents an effort by the Committee to codify in these rules four statutes relating to the scope of review by the Supreme Court in civil and criminal cases, all of which have been superseded. Subdivision (a) is taken from former § 28-27-28, N.D.C.C., except the last sentence of the statute regarding exceptions and a settled statement of the case was deleted. Subdivision (b) is a restatement of former § 28-27-29. Subdivision (c) is derived from § 29-28-27, and is similar in scope to subdivision (a), but it relates to criminal appeals. Subdivision (d) is taken from former § 29-28-28. The rule does not change existing appellate practice.

RULE 38, NDRAppP - Procedure Committee Notes

Mr. Higgins MOVED that the Procedure Committee Notes as prepared by Mr. Bucklin, with style changes, be substituted for the present Procedure Committee Notes, and that they be adopted. Mr. Bucklin seconded the motion. Motion CARRIED.

This rule is derived from Rule 38, F.R.App.P. It is clear under the North Dakota rules that damages may be assessed against any party to an appeal.

Rule 38 relates to an initial determination by the North Dakota Supreme Court. In contrast, § 28-26-01, N.D.C.C., regarding "frivolous" pleadings and § 28-26-21, N.D.C.C., regarding "untrue" pleadings made "without reasonable cause and not in good faith" involve determinations that are to be made initially by the trial court.

The Supreme Court has an inherent power to assess substantial motion costs "to encourage compliance with the rules of appellate procedure." See Halverson v. Pet, Inc., 260 N.W.2d 11, 13 (N.D. 1977).

It is not intended that Rule 38 limits Rule 13.


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RULE 39, NDRAppP - Procedure Committee Notes

Judge Burdick MOVED to adopt the Procedure Committee Notes to Rule 39, NDRAppP, as amended. Mr. Bucklin seconded the motion. Motion CARRIED.

Although derived from Rule 39, F.R.App.P., this rule is revised to simplify taxation of costs in the appellate court and the trial court. It provides for taxation of all costs by the clerk of the trial court, except in proceedings initiated in the Supreme Court. Because it is assumed that the usual case will involve typewritten papers, a presumed cost figure for briefs is inserted for convenience in assessing costs. This would ordinarily include the cost of the appendix.

Subdivision (g) generally restates § 28-31-11, N.D.C.C., which has been superseded. It provides a method for execution on a judgment for costs incurred in an action originating in the Supreme Court.

Judge Smith MOVED that the Procedure Committee Notes to Rule 39, NDRAppP, show that § 28-31-11, N.D.C.C., be shown as superseded, and that a cross reference to § 27-04-09, N.D.C.C., be inserted in the Note. Judge Burdick seconded the motion. Motion CARRIED.

RULE 40, NDRAppP and Procedure Committee Notes

Mr. Higgins MOVED to adopt Rule 40, NDRAppP, as amended, and the Procedure Committee Notes, as amended. Mr. Bucklin seconded the motion. Motion CARRIED.

RULE 40. Petition for Rehearing.

(a) Time for Filing; Content; Answer; Action by Court if Granted.

A petition for rehearing may be filed within 14 days after entry of judgment unless the time is shortened or enlarged by order. The petition shall state with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended and shall contain such argument in support of the petition as the petitioner desires to present. Oral argument in support of the petition will not be permitted. No answer to a petition for rehearing will be received unless requested by the court, but a petition for rehearing will ordinarily not be granted in the absence of such a request. If a petition for rehearing


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is granted the court may make a final disposition of the cause without reargument or may restore it to the calendar for reargument or resubmission or may make such other orders as are deemed appropriate under the circumstances of the particular case.

(b) Form of Petition; Length.

The petition shall be in a form prescribed by Rule 32, and copies shall be served and filed as prescribed by Rule 31(b) for the service and filing of briefs. Except by permission of the court, a petition for rehearing must not exceed 10 pages.

Procedure Committee Notes

Based upon Rule 49, F.R.App.P., this rule contemplates filing only the number of copies provided for briefs. Oral argument on the petition is not allowed. The rule, obviously, does not encourage petitions for rehearing.

RULE 41, NDRAppP

Judge Burdick MOVED to amend Rule 41, NDRAppP, as follows:

Line 15: Delete "application" and insert "An Appeal or Petition";

Line 16: Delete "application" and insert "an appeal or a petition";

Lines 21 through 27 to read: "If, while the stay is in effect, the party who has been granted a stay files a copy of the petition for the writ with the clerk of the supreme court the stay shall continue";

Line 30: After "United States" insert "affirming the judgment or".

and to adopt Rule 41, NDRAppP, as amended. Mr. Bucklin seconded the motion. Motion CARRIED.

RULE 41. Issuance of Mandate; Stay of Mandate.

(a) Date of Issuance.

The mandate of the supreme court shall issue 21 days after the entry of judgment unless the time is shortened or enlarged by order. A certified copy of the judgment and a copy of the opinion of the court, if any, and any direction as to costs shall constitute the mandate, unless the court directs that a formal mandate issue. The timely filing of a petition for rehearing will stay the mandate until disposition of the petition unless otherwise ordered by the court. If the petition is denied, the mandate shall issue 7 days after entry of the order denying the petition unless the time is shortened or enlarged by order.

(b) Stay of Mandate Pending an Appeal or Petition.


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A stay of the mandate pending an appeal or petition to the Supreme Court of the United States for a writ of certiorari may be granted upon motion. The stay may not exceed 30 days unless the period is extended for cause shown. If, while the stay is in effect, the party who has been granted a stay files a copy of the petition for the writ with the clerk of the supreme court the stay shall continue until final disposition by the Supreme Court of the United States. Upon the filing of a copy of an order of the Supreme Court of the United States affirming the judgment or denying the petition for writ of certiorari the mandate shall issue immediately. A bond or other security may be required as a condition to the grant or continuance of a stay of the mandate.

RULE 42, NDRAppP - Procedure Committee Notes

Mr. Bucklin MOVED to adopt the Procedure Committee Notes to Rule 42, NDRAppP. Judge Burdick seconded the motion. Motion CARRIED.

This rule is derived from Rule 42, F.R.App.P., although subdivision (a) of the Federal Rule, relating to dismissal in the trial court before the appeal is docketed, has been deleted. All stipulation and motions for dismissal must be filed in the Supreme Court.

RULE 47, NDRAppP

Judge Burdick MOVED to adopt Rule 47, NDRAppP, as amended. Mr. Higgins seconded the motion. Motion CARRIED.

RULE 47. Uniform Certification of Questions of Law.

(a) Power to Answer.

The supreme court may answer questions of law certified to it by the Supreme Court of the United States, a court of appeals of the United States, a United States district court, or the highest appellate court or the intermediate appellate court of any other state, when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.

(b) Method of Invoking.

This rule may be invoked by an order of any of the courts referred to in subdivision (a) upon


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the court's own motion or upon the motion of any party to the cause.

(c) Contents of Certification Order.

A certification order shall set forth:

1. the questions of law to be answered; and

2. a statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose.

(d) Preparation of Certification Order.

The certification order shall be prepared by the certifying court, signed by the judge presiding at the hearing, and forwarded to the supreme court by the clerk of the certifying court. The supreme court may require the original or copies of all or of any portion of the record before the certifying court to be filed with the certification order, if, in the opinion of the supreme court, the record or portion thereof may be necessary in answering the questions.

(e) Costs of Certification.

Fees and costs shall be the same as in civil appeals docketed before the supreme court and shall be equally divided between the parties unless otherwise ordered by the certifying court in its order of certification.

(f) Briefs and Argument.

Proceedings in the supreme court are governed by these rules.

(g) Opinion.

The written opinion of the supreme court stating the law governing the questions certified shall be sent by the clerk to the certifying court and to the parties.

(h) Power to Certify.

The supreme court of this state, on its own motion or the motion of any party, may order certification of questions of law to the highest court of any state when it appears to the certifying court that there are involved in any proceeding before the court questions of law of the receiving state which may be determinative of the cause then pending in the certifying court and it appears to the certifying court that there are no controlling precedents in the decisions of the highest court.


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(i) Procedure on Certifying.

The procedures for certification from this state to the receiving state shall be those provided in the laws of the receiving state.

(i) Severability.

If any provision of this rule or the application thereof to any person, court, or circumstance is held invalid, the invalidity does not affect other provisions or applications of the rule which can be given effect without the invalid provision or application, and to this end the provisions of this rule are severable.

(K) Construction.

This rule shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.

(1) Short Title.

This Rule may be cited as the Uniform Certification of Questions of Law rule.

RULE 47, NDRAppP - Procedure Committee Notes

Mr. Higgins MOVED to adopt the Procedure Committee Notes to Rule 47, NDRAppP. Judge Burdick seconded the motion. Motion CARRIED.

Procedure Committee Notes

(By National Conference of

Commissioners on Uniform State Laws)

This rule provides that the highest court of the state has the right to answer questions certified to it; it is not mandatory. Under some circumstances it is possible that the court might decide not to answer a certified question. See, for example, Atlas Life Insurance Co. v. W. I. Southern, Inc., 306 U.S. 563 [59 S.Ct. 657, 83 L.Ed. 987] (1939), and National Labor Relations Board v. White Swan, 313 U.S. 23 [61 S.Ct. 751, 85 L.Ed. 1165] (1941) (in both cases the Supreme Court of the United States refused to answer certified questions.)

The courts listed as the court which may certify questions are the Supreme Court of the United States, the federal Courts of Appeals and the federal District Courts, which would include three-judge District Courts under 28 U.S.C. 2281 and 2284. Also included are "the highest appellate court or the intermediate appellate court" of other states. This provision allows certification of questions in conflicts cases.


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The certification order in the statement of facts should present all of the relevant facts. The purpose is to give the answering court a complete picture of the controversy so that the answer will not be given in a vacuum. The certifying court could include exhibits, excerpts from the record, summary of the facts found by the court, and any other document which will be of assistance to the answering court.

Subdivision (f) provides for incorporation by reference of the local rules or statutes governing briefs and arguments.

Subdivisions (h) and (i) allow a state to provide for certifications from the courts of that state to the highest court of another state. This could prove to be very useful in the case of conflicts of laws where State A's court wishes to apply the law of B. If B's law is unclear on the point, a question could be certified. This is the reciprocal provision of subdivision (a).

NEXT MEETING

The next meeting of the Joint Procedure Committee will commence on Thursday, October 12, 1978, and continue all day Friday, October 13, 1978.

RECESS

The Committee recessed to Friday, May 26, at 9:00 a.m.

CALL TO ORDER

The meeting was called to order at 9:00 a.m., Friday, May 26, 1978, by Justice Paul M. Sand, Chairman.

ATTENDANCE

Present:

Hon. Kirk Smith

Mr. Leonard H. Bucklin

Mr. David Peterson

Mr. Kent Higgins (10:00 a.m.)

TIME TABLE FOR APPEALS

Mr. Peterson MOVED that the Time Table for Appeals be adopted, as amended, and as shown on the attached copy, marked Exhibit "A". It is the intent of the Committee that the time table be a guide, and that in each instance the applicable rule should be consulted.


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RULE 47, NDRCivP - Procedure Committee Notes

Mr. Bucklin MOVED to insert the following language in the Procedure Committee Notes: "The term 'side' as used in subdivision (b) is intended to have the same meaning as the term 'party' in the Staiger decision." and strike the following: "The number of peremptory challenges in a six-person jury parallels current federal practice." Mr. Peterson seconded the motion. Motion CARRIED.

Judge Smith MOVED to adopt the Procedure Committee Note to Rule 47, NDRCivP, as amended. Mr. Bucklin seconded the motion. Motion CARRIED.

This rule governs jury challenges in civil cases just as Rule 24, N.D.R.Crim.P., governs jury challenges in criminal cases. Subdivision (a) differs from the Federal Rule in that the North Dakota Rule allows the individual attorneys or parties as well as the judge to question the prospective jurors. The questions asked by the attorneys or parties, however, are subject to the discretion of the trial court. Trautman v. New Rockford-Fessenden Coop., 181 N.W.2d 758 (N.D. 1970).

Most of subdivision (b) is derived from § 28-14-05, N.D.C.C., which has been superseded. Language was added which reduces the number of peremptory challenges if a jury of six is demanded [see Rule 38, Rule 48, and § 28-14-03.1, N.D.C.C.].

The fourth sentence in subdivision (b) synthesizes the interpretation of § 28-14-05, N.D.C.C., given by the Supreme Court in Staiger v. Gaarder, 258 N.W.2d 641 (N.D. 1977). In discussing the meaning of "party" in the statute, the Court stated:

"We construe § 28-14-05, N.D.C.C., as follows: All co-plaintiffs are deemed a single 'party' and are together entitled to one set of peremptory jury challenges. Likewise, all co-defendants are deemed a single 'party' and are together entitled to one set of six peremptory jury challenges. However, when there are co-plaintiffs or co-defendants who have essentially adverse or antagonistic interests, the trial court may, in its sound discretion, grant the co-plaintiffs or co-defendants additional peremptory jury challenges." 248 N.W.2d at 645.


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The term "side" as used in subdivision (b) is intended to have the same meaning as the term "party" in the Staiger decision.

Subdivision (c) is derived from Rule 24(b)(2), N.D.R.Crim.P., except that the grounds for a challenge for cause are those provided by law. "Provided by law" refers to the grounds listed in § 28-14-06, N.D.C.C.

Subdivision (d), which was subdivision (b) prior to the 1978 amendments, makes it clear that the judge, not the juror, determines whether that juror is unable or disqualified to continue his duties.

RULE 50, NDRCivP - Procedure Committee Note

Mr. Peterson MOVED to substitute the language in the amended version submitted for the language in the manual. Mr. Bucklin seconded the motion. Motion CARRIED.

Procedure Committee Notes

[Commentary taken by permission from L. Bucklin,

Civil Practice in North Dakota 259-261 (1975).]

1. Directed Verdict.

A. When Made

The language stating when a party might move for a directed verdict was changed in 1971 from "at the close of all the evidence" (old rule) to "at the close of the evidence offered by an opponent" (present rule). This change is consistent with the 1971 amendments to Rule 41 which made it clear that Rule 41 is for use in court-tried cases only. Now both Rule 41 (for court-tried cases) and Rule 50 (for jury-tried cases) use the same type of language.

The purpose in the language change in Rule 50 is to allow you to use the directed verdict motion at an earlier time in the trial. The purpose was not to restrict its use at the later stages of the trial.

The motion for a directed verdict can be made at the close of the evidence offered by an opponent, and also later at the close of all the evidence. 5A Moore's Federal Practice, ¶ 50.05. The change by the 1971 amendments means that (instead of trial counsel making a motion called a motion for dismissal at the end of his opponent's case in a jury action and then making a similar motion called a motion for directed verdict at the close of all the evidence) the attorney can make a motion at both times and at both times call it a motion for directed verdict.


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B. When to be Granted.

The 1971 amendments took out the requirement that if the adverse party objected to a motion for a directed verdict, the court had to submit to the jury the issues as to which any evidence at all had been received. Kunze v. Stang, 191 N.W.2d 526 (N.D. 1971). Our Court follows the federal rule language and the federal standard for a directed verdict. The federal and North Dakota standard is this: a verdict is to be directed, even if there is some evidence on both sides, if the facts point so strongly in favor of one party that the court believes that reasonable men could not come to a different conclusion. Brady v. Southern R.R., 320 U.S. 476 at 479 to 480, 64 S.Ct. 232, 88 L.Ed. 239 (1943); Frank v. Daimler-Benz, 226 N.W.2d 143 (N.D. 1975).

. . . . . .

However, the court has not been enthusiastic about directed verdicts and has said they would be granted only when, without weighing the evidence, only one reasonable conclusion can be reached. Frank v. Daimler-Benz, 236 N.W.2d 143 (N.D. 1975); Nokota Feeds, Inc. v. State Bank of Lakota, 210 N.W.2d 182 (N.D. 1973). A directed verdict is especially difficult in a negligence case. Waletzko v. Herdegen, 226 N.W.2d 649 (N.D. 1975).

Under the rule of Northern Improvement Co. v. Pembina Broadcasting Co., 153 N.W.2d 97 (N.D. 1967), trial counsel still must object to the motion of the other party for a directed verdict; if both sides make motions for a directed verdict without objecting to the other's motion, jury will be waived and the matter will be treated as a trial by the court.

Federal courts have long rejected the idea that a court cannot direct a verdict if there is a scintilla of evidence in favor of the party against whom the motion is directed. 5A Moore's Federal Practice ¶ 50.02. Our state courts now follow this; and so, directed verdicts can occur when the objecting party does have evidence in his favor, but it is so far overbalanced by the weight of the evidence that reasonable men could not differ. Frank v. Daimler-Benz, 226 N.W.2d 143 (N.D. 1975); Askew v. Joachim Mem. Home, 234 N.W.2d 226 (N.D. 1975).

Direction of a verdict may be proper in a case in which summary judgment is denied. Cf., Johnson v. American Motors Corp., 225 N.W.2d 57 (N.D. 1974) (Judge "should ordinarily hear the evidence and direct the verdict rather than attempt to try the case in advance on a motion for summary judgment.") . . . .


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C. Grounds for Motion

The old rule required that if the insufficiency of the evidence was specified then some sort of "particular wherein the evidence is insufficient" had to be stated. All that is now required is that the trial court be apprised of the grounds of the motion so that the trial court has adequate opportunity to make a rational decision at the trial court level.

. . . . . .

2. Judgment Notwithstanding the Verdict

It has long been the rule in North Dakota that a motion for judgment notwithstanding the verdict calls for a review of the trial court's ruling in denying a previous motion for directed verdict, and brings before the trial court, for the second time, questions raised by the original motion for a directed verdict. Hanson v. Fledderman, 111 N.W.2d 40 (N.D. 1961).

Under the Rules, it is only a party who has moved for a directed verdict who can later move to have judgment notwithstanding the verdict. Christensen v. Farmers State Bank of Richardton, 157 N.W.2d 352 (N.D. 1968). The appellate philosophy that the trial court must have its opportunity before the jury goes out was not changed by the 1971 amendments.

A motion for judgment notwithstanding the verdict is actually merely a renewal of any previous motion for a directed verdict as to which the court has reserved decision. The standard for directed verdict or judgment notwithstanding the verdict is exactly the same. McKay v. Costigan, 179 F.2d 125 (7th Cir. 1950).

Despite the identity of standards for the trial court's action, it has been made clear in the federal courts that a denial of a motion for directed verdict is no bar to consideration of a motion for judgment notwithstanding the verdict. 5A Moore's Federal Practice, ¶ 50.07. Thus if a trial court decides it erred in denying a motion for directed verdict, it can grant a motion for a judgment notwithstanding the verdict and find its final actions upheld by the appellate court.

. . . . . .

3. Alternative Motion after Trial

Rule 50(b) allows an alternative motion for judgment notwithstanding the verdict or for a new trial. A careful attorney should always make the alternative motion. Otherwise, he will be limited in the matters he can argue either to the trial court or on appeal.


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Where an alternative motion is made, a trial court is required by Rule 50 to rule on both the motion for a new trial and a motion for judgment. The purpose is to avoid two appeals which could otherwise result if the trial court decision ruling on only part of the alternative motion is found wrong. The rule adopts the procedure described in some detail in Montgomery Ward § Co. v. Duncan, 331 U.S. 243 (1940).

. . . . . .

[Notes by Joint Procedure Committee]

The 1978 amendment to Rule 50(b) clarifies the basis of a motion for judgment notwithstanding the verdict. The language is derived from Rule 50.02, Minnesota Rules of Civil Procedure. Identical language was added to Rule 59(d).

Under the amended rule, a motion is heard on the minutes of the court, the exhibits introduced at the trial, and other matters on file. Affidavits may be used to supply facts not otherwise shown as a part of the minutes. Definitions of the "minutes" and the "file" are found in the Procedure Committee Notes to Rule 59(d).

The motion may also be based on a complete or partial transcript of the trial.

RULE 59, NDRCivP - Procedure Committee Note

Mr. Peterson MOVED to substitute the language in the amended version submitted for the language in the manual. Mr. Bucklin seconded the motion. Motion CARRIED.

[Commentary taken by permission from L. Bucklin,

Civil Practice in North Dakota 283-284 (1975).]

1. Grounds for New Trial

The causes set up by the Rules are the exclusive causes for a new trial. Mayer v. Robb, 138 N.W.2d 660 (N.D. 1965).

The listing of grounds for a new trial in Rule 59(b) is not stated to be exhaustive. The Rules themselves have other provisions providing for a new trial. A new trial may be ordered for inconsistencies between a general verdict and special interrogatories accompanying the verdict. Rule 40(b). A new trial may be ordered for disability of the judge before whom the case was originally tried. Rule 63(a).

A motion for a new trial must state the grounds upon which relief is sought. It raises no issues other than the ones specified. Errors of law not specified in the


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motion for a new trial are waived. Mayer v. Robb, 138 N.W.2d 660 (N.D. 1965).

In passing on motions for a new trial, the court must keep in mind Rule 61 which states that errors which do not affect the substantial rights of the parties should be disregarded.

2. 1971 Amendments.

Rule 59(i) regarding new trial granted on the initiative of the court was amended in 1971. The amendment was specifically aimed at the decision in Mayer v. Robb, 138 N.W.2d 660 (N.D. 1965). The Mayer case held that the former Rule 59 did not allow the trial court to grant a new trial on a just ground discovered by the court while a motion for a new trial was otherwise pending in the court. The present rule allows the court to make a just decision on a just ground while a motion is pending and with notice to the parties, even though the ground is not one that the parties themselves raised.

. . . . . .

[Notes by Joint Procedure Committee]

3. 1978 Amendments

The amendments to subdivision (d) are derived from Rule 59.02, Minnesota Rules of Civil Procedure, and clarify the basis of a motion for a new trial. Under the amended rule the motion is heard on the minutes of the court, the exhibits proffered, and other matters on file. Affidavits are permitted to supply facts not otherwise shown as a part of the minutes. Minutes include the unofficial and untranscribed notes of the court reporter, notes of the clerk of court indicating which exhibits have been received, and the notes made by the trial judge during the course of the trial. The file includes the pleadings, depositions on file, and other formal documents in the court file. Exhibits include the exhibits proffered at trial. The use of a complete or partial transcript of the proceedings is also permitted.

4. Review of trial Court

Whether a new trial should be granted rests "almost entirely in the discretion of the trial court." Kresel v. Giese, 231 N.W.2d 780, 790 (N.D. 1975). The Supreme Court will reverse an order granting or denying a new trial only if a "manifest abuse of discretion" is shown. Cook v. Stenslie, 251 N.W.2d 393, 395 (N.D. 1977); Stee v. "L" Monte Industries, Inc., 247 N.W.2d 641, 645 (N.D. 1976). The term "abuse of discretion" has been defined as meaning "an unreasonable, arbitrary, or unconscionable attitude


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upon the part of the court." Maier v. Holzer, 123 N.W.2d 29, 32 (N.D. 1963). In comparing the standards of review of the two orders, the Court has further stated that "a stronger showing is required to reverse the granting of a new trial than to reverse an order denying a motion for a new trial." Cook v. Stenslie, 251 N.W.2d 393, 396 (N.D. 1977).

SUBMISSION OF AMENDMENTS TO SUPREME COURT

Mr. Bucklin MOVED that the rules which are ready be submitted to the Supreme Court over the signature of the Chairman of the Joint Procedure Committee. Judge Smith seconded the motion. Motion CARRIED.

Mr. Higgins MOVED that the rules and amendments which have been considered and approved be submitted to the Supreme Court. Mr. Bucklin seconded the motion. Motion CARRIED.

RULE 11, NDRCrimP

Mr. Bucklin MOVED to delete the recommended changes in Rule 11(d)(1) except "or the defendant when acting pro se." Judge Smith seconded the motion. Motion CARRIED.

Mr. Higgins MOVED to adopt the recommended changes in Rule 11(d)(2). Mr. Peterson seconded the motion. Motion CARRIED.

Mr. Bucklin MOVED that the language in Rule 11(d)(3) be restored by deleting the triple parentheses in the suggested amendment. Mr. Higgins seconded the motion. Motion CARRIED.

Mr. Bucklin MOVED to adopt the recommended changes in Rule 11(d)(4). Mr. Peterson seconded the motion. Motion CARRIED.

Judge Smith MOVED to adopt Rule 11, NDRCrimP, as amended. Mr. Bucklin seconded the motion. Motion CARRIED.

RULE 11. Pleas.

(a) Alternatives.

A defendant may plead not guilty or guilty. If a defendant refuses to plead or if a defendant corporation fails to appear, the court shall enter a plea of not guilty.

(b) Advice to Defendant.

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

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


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

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

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

(5) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if necessary, one will be appointed to represent him.

(c) Insuring that the Plea is Voluntary.

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

(d) Plea Agreement Procedure.

(1) In General.

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

(2) Notice of Such Agreement.

If a plea agreement has been reached by the parties, the court, on the record, shall require the disclosure of the agreement in open court on a showing of good cause, in camera, at the time the plea is offered.


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Thereupon the court may accept or reject the agreement, or may defer its decision as to acceptance or rejection until receipt of a presentence report.

(3) Acceptance of Plea.

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

(4) Rejection of a Plea Agreement.

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

(5) Time of Plea Agreement Procedure.

The court of the existence of a plea agreement shall be given at the arraignment or at such other time, prior to trial, as may be fixed by the court.

(6) Plea Discussions.

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


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(e)Determining Accuracy of Plea.

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

(f) Record of Proceedings.

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

(g) Plea Put in by Defendant Unless Corporation.

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

RULE 12, NDRAppP

Mr. Higgins MOVED to reconsider Rule 12, NDRAppP. Judge Smith seconded the motion. Motion CARRIED.

Mr. Higgins MOVED to amend Rule 12, NDRAppP, by adding the following language after the word "filed" in line 9: "No docket fee shall be required in criminal cases." Mr. Bucklin seconded the motion. Motion CARRIED.

Mr. Higgins MOVED to re-adopt Rule 12, NDRAppP, as amended. Judge Smith seconded the motion. Motion CARRIED.

RULE 12. Docketing The Appeal.

(a) Time for Docketing the Appeal.

The appellant shall deposit the docket fee with the clerk of the trial court at the time the notice of appeal is filed. No docket fee shall be required in criminal cases. Upon receipt of the docket fee, the clerk of the supreme court shall thereupon enter the appeal upon the docket. If an appellant is authorized to prosecute the appeal without prepayment of fees or has been declared indigent by order of any court of this state for the purpose of any action relating to the appeal, the clerk shall enter the appeal upon the docket at the request


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of a party or at the time of filing the record. The supreme court upon motion for cause shown may enlarge the time for docketing the appeal or permit the appeal to be docketed out of time. An appeal shall be docketed under the title given to the action in the trial court, with the appellant identified as such, but if the title does not contain the name of the appellant, his name, identified as appellant, must be added to the title.

(b) Dismissal for Failure of Appellant To Docket Appeal.

If the appellant fails to pay any docket fee if a docket fee is required, any appellee may file a motion in the supreme court to dismiss the appeal. The motion must be supported by a certificate of the clerk of the trial court showing the date and substance of the judgment or order from which the appeal was taken, the date on which the notice of appeal was filed, and by proof of service. The appellant may respond within 14 days after the service. The clerk of the supreme court shall docket the appeal for the purpose of permitting the court to entertain the motion without requiring payment of the docket fee, but the appellant is not permitted to respond without payment of the fee unless he is otherwise exempt therefrom.

ADJOURNMENT

Mr. Bucklin MOVED to adjourn. Mr. Higgins seconded the motion. Motion CARRIED.

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Secretary