Joint Procedure Committee Meeting

Scheduled on Thursday, September 15, 1977 @ 2:00 PM

MINUTES OF MEETING

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

September 15-16, 1977

The meeting was called to order at 1:00 p.m., September 15, 1977, by Justice Paul M. Sand, Chairman.

ATTENDANCE

Members Present:

Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. Larry Hatch
Hon. Kirk Smith
Hon. William S. Murray
Mr. Jon M. Arntson
Mr. Leonard H. Bucklin
Mr. Kent Higgins
Mr. James L. Lamb
Mr. LeRoy A. Loder
Mr. David L. Peterson
Mr. Calvin N. Rolfson

Members Absent:

Hon. Robert Vogel
Hon. James H. O'Keefe
Hon. R. C. Heinley
Mr. Timothy Q. Davies
Mr. Larry Kraft
Mr. Harry Pearce

Staff Present:

Joel W. Gilbertson

Eveleen Klaudt

APPROVAL OF MINUTES

Judge Burdick MOVED that the Minutes of the June 2-3, 1977, meeting be approved. Mr. Peterson seconded the motion. Motion CARRIED.

RULE 23, NDRCrimP

Judge Burdick MOVED that the Committee adopt Rule 23, NDRCrimP, as drafted, and that it be sent to the Supreme Court for adoption and promulgation. Mr. Higgins seconded the motion. Motion CARRIED.

RULE 23

TRIAL BY JURY OR BY COURT

(a)Trial by Jury.

Trial shall be by jury in all cases as provided by law unless the defendant waives a jury trial in writing or in open court with the approval of the court and consent of the prosecuting attorney.


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(b) Number of Jurors.

In felony cases a jury shall consist of twelve qualified jurors. In misdemeanor cases a jury shall consist of six qualified jurors unless a party demands a jury of twelve. The demand must be made at the arraignment or filed with the clerk not later than the time set for making pretrial motions.

(c) Jury of Fewer Than Twelve by Stipulation.

At any time before verdict the parties may stipulate in writing or in open court, with the approval of the court, that the jury shall consist of fewer than twelve.

(d) Trial without a Jury.

In a case tried without a jury, the court shall make a general finding of guilty or not guilty.

Mr. Peterson wished to be recorded as having voted "no," as he is opposed to the six-man jury concept.

EXPLANATORY NOTE - RULE 23, NDRCrimP

Judge Burdick MOVED that the Committee approve the explanatory note with the additional matter as proposed. Judge Murray seconded the motion. Motion CARRIED.

Rule 23 is adapted from Federal Rule 23 and governs with respect to trial by jury or by court of all criminal actions which arise within the State. Rule 23 differs from the Federal Rule in that the Federal Rule permits only a written waiver. There is no right to trial by jury under Federal law in cases involving a petty offense. 18 U.S.C.A., Section 1, provides, "any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of $500 or both is a petty offense." [See Callan v. Wilson, 127 U.S. 540, 557, 8 S.Ct. 1301, 32 L.Ed. 223, 228 (1888); District of Columbia v. Clawans, 300 U.S. 617, 624, 57 S.Ct. 660, 81 L.Ed. 843, 846 (1937); United States v. Barnett, 376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d 23, rehearing denied, 377 U.S. 973, 84 S.Ct. 1642, 12 L.Ed.2d 742 (1964); Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, rehearing denied, 392 U.S. 947, 88 S.Ct. 2270, 20 L.Ed.2d 1412 (1968). See also, State v. Heath, 177 N.W.2d 751 (N.D. 1970), dealing with criminal contempt. Criminal contempt is a crime in every essential respect; it is a violation of the law; punishable by fine, imprisonment or both. The Court went on to say, in Heath, at page 754, "Where the Legislature *** has fixed the maximum penalty for the offense of criminal contempt at thirty days in jail and a $250 fine,


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we find such criminal contempt. Therefore, the defendants were not entitled to a jury trial as a matter of right."]

Subdivision (a), which provides for the waiver of jury trial by the defendant, embodies existing practice, the constitutionality of which has been upheld. [Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263 (1930).] But Subdivision (a) does not give the defendant an absolute right to waive trial by jury. Before such a waiver may be granted, the defendant must have the approval of the court and the consent of the prosecution. [Dixon v. United States, 292 F.2d 768 (D.C.Cir. 1961).] This position reflects the view that "Trial by jury is the norm and with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses." [Singer v. United States, 380 U.S. 24, 37-38, 85 S.Ct. 783, 791, 13 L.Ed.2d 630 (1965).]

Subdivision (b) implements the provisions of § 29-17-12, N.D.C.C., by clarifying when a request for a jury of 12 in a misdemeanor case must be made to be "timely."

Subdivision (c) permits either a stipulation in writing before trial that the case be tried by a jury composed of less than twelve or a stipulation during the trial consenting that the case be submitted to less than twelve jurors. The second alternative is useful in case it becomes necessary during the trial to excuse a juror owing to illness or some other cause and no alternative juror is available. It should be emphasized that for a defendant to be permitted to waive trial by jury or to consent to a trial by less than twelve, it must be shown to be the result of the "express and intelligent consent of the defendant," and it must represent his voluntary act. [United States v. Sams, 219 F.Supp. 164 (D.Pa. 1963), 340 F.2d 1014 (3rd Cir. 1965), rehearing denied 1965, cert. denied 380 U.S. 974, 85 S.Ct. 1336, 14 L.Ed.2d 270 (1965).]

Subdivision (d) differs from the Federal Rule in that it requires only a finding of guilty or not guilty, whereas the Federal Rule provides, "In a case tried without a jury the court shall make a general finding and shall in addition upon request find the facts specially. ***" [18 U.S.C.A., F.R.Crim.P., Rule 23.]

RULE 38, NDRCivP

Judge Burdick MOVED to adopt the proposed amendment to Rule 38(c). Mr. Bucklin seconded the motion. Motion CARRIED.

Judge Burdick MOVED to amend subdivision (e) as follows: In the last line delete the period, and add "and serving a copy of the notice upon all other parties." Mr. Higgins seconded the motion.


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Mr. Peterson MOVED to table further discussion of this Rule, and move on to Rule 38.1, then return to Rule 38. Mr. Rolfson seconded the motion. Motion CARRIED.

RULE 38.1, NDRCivP

Mr. Peterson MOVED to not present Rule 38.1 to the Supreme Court for adoption. Judge Smith seconded the motion. Motion LOST.

Mr. Higgins MOVED to table discussion of Rule 38.1 and 38, NDRCivP, to the next day's meeting. Mr. Loder seconded the motion, Motion CARRIED.

RULE 48, NDRCivP

Mr. Loder MOVED to adopt Rule 48, NDRCivP, and submit it to the Supreme Court for adoption and promulgation. Judge Glaser seconded the motion. Motion CARRIED.

RULE 48

JURIES OF LESS THAN TWELVE -

MAJORITY VERDICT

(a) Stipulation. The parties may stipulate that the jury shall consist of any number less than twelve or that a verdict or finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury.

(b) Jury of Six. In all civil actions in which a jury is impaneled, the jury shall consist of six qualified jurors unless any party entitled to do so makes a written demand for a jury of twelve in accordance with Rule 38.

RULE 3 - NDRAppP

Mr. Rolfson MOVED to adopt Rule 3, NDRAppP, as amended, with minor style changes. Mr. Higgins seconded the motion. Motion CARRIED.

RULE 3

APPEAL AS OF RIGHT - HOW TAKEN

(a) Filing the Notice of Appeal. An appeal permitted by law as of right from a trial court to the supreme court shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court deems appropriate, which may include dismissal of the appeal.


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(b) Joint or Consolidated Appeals. If two or more persons are entitled to appeal from a judgment or order of a trial court and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in appeal after filing separate timely notices of appeal, and they may thereafter proceed on appeal as a single appellant. Appeals may be consolidated by order of the supreme court upon its own motion or upon motion of a party, or by stipulation of the parties to the several appeals.

(c) Content of the Notice of Appeal. The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order, or part thereof appealed from; and shall name the court to which the appeal is taken.

(d) Service of the Notice of Appeal. The clerk of the trial court shall serve notice of the filing of the notice of appeal by mailing a copy thereof to the clerk of the supreme court and to counsel of record for each party other than the appellant, or, if a party is not represented by counsel, to the party at his last known address. In criminal cases, habeas corpus proceedings, or post-conviction proceedings, the clerk also shall mail a copy of the docket entries to the clerk of the supreme court. If an appeal is taken by a defendant in a criminal case, the clerk shall serve a copy of the notice of appeal upon him, either by personal service or by mail addressed to him. The clerk shall note on each copy served the date on which the notice of appeal was filed. Failure of the clerk to serve notice does not affect the validity of the appeal. Service is sufficient notwithstanding the death of a party or his counsel. The clerk shall note in the docket the names of the parties to whom he mails copies, with the date of mailing.

The title of the action is not to be changed in consequence of the appeal.

RULE 10 - NDRAppP - Draft 1

Mr. Higgins MOVED to consider Rule 10, NDRAppP, Draft 2, first. Mr. Lamb seconded the motion. Motion CARRIED.

RULE 10 - NDRAppP - Draft 2

Mr. Rolfson MOVED to amend Rule 10, line 32, by deleting "shall be liable for possible" and inserting "is subject to"; and after line 38 add, "(5) Parties to be served with copies." Mr. Bucklin seconded the motion.

Mr. Lamb MOVED a substitute motion to delete the sentence beginning with the last word on line 30. Mr. Rolfson seconded the motion. Motion CARRIED.


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Mr. Lamb MOVED to insert the following language in lines 30 to 33: "The trial court upon request of the court reporter or the party ordering the transcript shall resolve any dispute as to the sufficiency of the arrangements." Mr. Higgins seconded the motion. Motion LOST by a vote of 6-7.

Mr. Rolfson MOVED to amend line 55 by deleting the words "all counsel of record" and inserting "parties designated in the order for transcript." Mr. Higgins seconded the motion. Motion CARRIED.

Mr. Higgins MOVED to amend line 38 by adding the following language: "(5) the names and addresses of the parties to be served with copies." Judge Burdick seconded the motion. Motion CARRIED.

Mr. Bucklin MOVED to amend Rule 10, Draft 2, line 21, by deleting "5" and inserting "10". Mr. Higgins seconded the motion. Motion CARRIED.

Judge Burdick MOVED to amend Rule 10, Draft 2, as follows: line 29, delete the word "must" and insert "shall"; line 48, delete the word "from" and insert "after"; line 61 delete the word "Such" and insert the word "The". Mr. Higgins seconded the motion. Motion CARRIED.

Mr. Lamb MOVED to adopt Rule 10, Draft 2, as amended. Mr. Peterson seconded the motion. Motion CARRIED.

RULE 10

THE RECORD ON APPEAL

(a) Composition of the Record on Appeal. The original papers and exhibits filed in the trial court, three copies of the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the trial court shall constitute the record on appeal in all cases.

(b) The Transcript of Proceedings; Duty of Appellant to Order; Notice to Appellee if Partial Transcript is Ordered. Within 5 days after filing the notice of appeal the appellant shall order in writing from the reporter five or more copies of a transcript of such parts of the proceedings not already on file as he deems necessary for the inclusion in the record. If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion. Unless the entire transcript is to be included, the appellant, within the time above provided, shall file and serve on the appellee a description of the parts of the transcript which he intends to include in the record and a statement of the


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issues he intends to present on the appeal. If the appellee deems a transcript of other parts of the proceedings to be necessary he, within 10 days after the service of the statement of the appellant, shall file and serve on the appellant a designation of additional parts to be included. If the appellant fails to order those parts within 5 days after service of the designation of additional parts by the appellee, the appellee shall either order in writing the parts within 10 days after service of the designation of additional parts by the appellee or apply to the trial court for an order requiring the appellant to do so. At the time of ordering, a party shall make satisfactory arrangements with the reporter for payment of the cost of the transcript. A party shall include in his order the following information:

(1) Caption of the case;

(2) Date or dates of trial;

(3) Portions of transcript requested;

(4) Number of copies required; and

(5) The names and addresses of the parties to be served with copies.

(c) Acceptance of Transcript Order; Time for Furnishing Transcript. The reporter promptly shall acknowledge in writing receipt of the transcript order and his acceptance of it if financial arrangements are satisfactory, with copies to the clerk of the trial court and the clerk of the supreme court and all counsel of record. The reporter shall serve and file the original and designated copies of the complete transcript or the partial transcripts ordered by the parties within 50 days after the date of receipt and acceptance of the first order for transcript received by the reporter. Three copies of the transcript shall be filed with the clerk of the trial court, and the other designated copies shall be served upon parties designated in the order for transcript.

If any party deems the period of time set by the reporter to be excessive or insufficient, or if the reporter needs an extension of time for completion of the transcript, the party or reporter may request a different period of time within which the transcript must be delivered upon written motion and affidavit as provided by Rule 27. The motion shall be heard by the trial court. A failure to comply with the order of the trial court fixing a time within which the transcript must be delivered may be punished as a contempt of court.

(d) Statement of the evidence or proceedings when no report was made or when the transcript is unavailable. If no report of the evidence or proceedings at a hearing


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or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments shall be submitted at the trial court for settlement and approval and as settled and approved shall be included by the clerk of the trial court in the record on appeal.

(e) Agreed statement as the record on appeal. In lieu of the record on appeal as defined in subdivision (a) of this rule, the parties may prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided in the trial court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with such additions as the trial court may consider necessary fully to present the issues raised by the appeal, shall be approved by the trial court and shall then be certified to the supreme court as the record on appeal and transmitted thereto by the clerk of the trial court within the time provided by Rule 11.

(f) Corrections or modification of the record. If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and that record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court either before or after the record is transmitted to the supreme court, or the supreme court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and, if necessary, that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the supreme court.

ADJOURNMENT

Judge Burdick MOVED to adjourn to 9:00 a.m., September 16. Mr. Rolfson seconded the motion. Motion CARRIED.

The Joint Procedure Committee reconvened at 9:00 a.m., September 16, 1977, with Justice Paul M. Sand, Chairman, presiding.


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ATTENDANCE

Members Present:

Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. Kirk Smith

Hon. Halvor L. Halvorson

Hon. William S. Murray

Hon. Robert Vogel

Mr. Jon M. Arntson

Mr. Leonard H. Bucklin

Mr. James L. Lamb

Mr. LeRoy A. Loder

Mr. Calvin N. Rolfson

RULE 38 - NDRCivP

Judge Burdick MOVED to amend Rule 38(e) by adding the following language after the last sentence: "A withdrawing party shall serve forthwith a copy of the notice upon all other parties." Judge Murray seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt Rule 38, NDRCivP, as amended, and submit it to the Supreme Court for its adoption and promulgation. Judge Murray seconded the motion. Motion CARRIED.

RULE 38

JURY TRIAL OF RIGHT

(a) Right Preserved. The right of trial by jury as declared by the Constitution of the United States or by the Constitution of the State of North Dakota or as given by a statute of the United States or of the State of North Dakota shall be preserved to the parties inviolate.

(b) Demand. Any party may demand a trial by jury of any issue triable of right by jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party.

(c) Size of Jury. If trial by jury is demanded, the jury shall consist of six qualified jurors unless a jury of twelve is specifically demanded within the time required by these rules for demanding trial by jury.

(d) Demand - Specifications of Issue. In his demand a party may specify the issues which he wishes so tried; otherwise he shall be deemed to have demanded trial by jury of all the issues so triable. If he has demanded


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trial by jury for only some of the issues, any other party within 10 days after service of the demand or such lesser time as the court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action.

(e) Waiver. The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by him of trial by jury. A waiver of trial by jury is not revoked by an amendment of a pleading asserting only a claim or defense arising out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. A demand for a trial by jury made by a party as herein provided may be withdrawn without the consent of any other party by filing a notice of withdrawal with the clerk. A withdrawing party shall serve forthwith a copy of the notice upon all other parties.

[Mr. Higgins arrived.]

RULE 38 - NDRCivP - COMMENTARY

Mr. Lamb MOVED to adopt the commentary to Rule 38, NDRCivP, with the following change: Delete "two" and insert "seven", and submit it to the Supreme Court for its consideration and adoption. Judge Burdick seconded the motion. Motion CARRIED.

Rule 38 does not change the right to a jury trial. However, it does provide that the failure of a party to serve a timely demand for jury trial is a waiver of the right to a jury trial.

Subdivision (c) asserts that if a jury is demanded it will be a jury of six, unless a jury of twelve is specifically demanded within the time required by subdivision (b).

Under subdivision (3) a party may withdraw his demand for trial by jury at any time and without the consent of any other party. Hence, a party who desires trial by jury may insure it only by timely filing his own demand for trial by jury. However, a party who does not withdraw his demand at least seven days before the trial is scheduled to commence may be subject to assessment of jury expense under Rule 38.1 in the event of settlement.

RULE 38.1, NDRCivP

Judge Burdick MOVED that the adopted amendment to Rule 38.1 be amended as follows: In paragraph (a), line 3, delete "two"


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and insert "seven"; line 8, delete "two" and insert "seven"; amend subsections (1) and (2) to read as follows:

(1) If any party has demanded and not previously withdrawn his demand for trial by jury, each party shall communicate his last settlement offer to the adverse party at least seven days before the trial is scheduled to commence and promptly file with the clerk a sealed statement indicating the amount of that offer.

(2) If a party has demanded and not withdrawn his demand for trial by jury and the settlement is less favorable to him than his settlement offer, he may be assessed the jury expense in the proportion that the difference between his settlement offer and the settlement bears to the difference between the settlement offers.;

delete "(4)" and insert "(3)"; delete "(5)" and insert "(4)"; and after the word "not" insert "communicated and". Mr. Higgins seconded the motion. Motion CARRIED.

Judge Burdick MOVED that Rule 38.1, NDRCivP, be adopted as amended and that it be submitted to the Supreme Court for its adoption and promulgation. Mr. Higgins seconded the motion. The motion CARRIED 7-6, Justice Sand casting the deciding vote.

Judge Murray wished to be recorded that he stated he believes this rule impedes free and open access to the courts, and therefore he is against it.

RULE 38.1

ASSESSMENT OF JURY EXPENSE

(a) If a civil action involving a monetary claim is scheduled for trial by a jury on a day certain and the claim is settled by the parties during the trial or within seven days before the trial is scheduled to commence and another action triable by jury cannot be substituted conveniently without delay, the court, as may be appropriate, shall assess to any party who has demanded trial by jury and not withdrawn his demand at least seven days before the scheduled trial date and apportion between or among demanding parties, if there is more than one, all or part of the per diem and mileage expense of the jurors reporting for jury service, according to the following rules:

(1) If any party has demanded and not previously withdrawn his demand for trial by jury, each party shall communicate his last settlement offer to the adverse party at least


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seven days before the trial is scheduled to commence and promptly file with the clerk a sealed statement indicating the amount of that offer.

(2) If a party has demanded and not withdrawn his demand for trial by jury and the settlement is less favorable to him than his settlement offer, he may be assessed the jury expense in the proportion that the difference between his settlement offer and the settlement bears to the difference between the settlement offers.

(3) If the settlement is at least as favorable to a party as his settlement offer, he shall not be assessed.

(4) If a settlement offer is not communicated and filed as required, the court may make any assessment justice requires.

(b) In exercising its discretion under this rule, the court shall consider any extenuating circumstances, such as the following:

(1) a significant change in circumstances occurring since the refusal of the settlement offer of a party subject to assessment; or

(2) a party subject to assessment would suffer undue financial hardship were the assessment to be made.

RULE 38.1 - NDRCivP - COMMENTARY

Judge Burdick MOVED to adopt the commentary to Rule 38.1, NDRCivP, and submit it to the Supreme Court for its adoption. Mr. Higgins seconded the motion. Motion CARRIED.

This rule is designed to advance the time of settlement of civil actions (1) brought to recover a judgment for money, (2) in which trial by jury is demanded, and (3) that are settled without a verdict. Frequently a case is scheduled for trial by jury on a day certain and the case is settled too late to inform the panel of jurors not to report or to substitute another case triable by jury, or the case is settled during the trial.

The late settlement causes the county to incur substantial unnecessary expense and is perplexing


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to the jurors, many of whom report for jury duty at great personal sacrifice.

If the case is settled during the trial or within seven days before the trial is to commence and another case cannot be substituted conveniently, the court is directed to assess the cost of the jury panel to parties who have demanded and not withdrawn their demands for trial by jury. The assessment is made against a jury-demanding party in proportion to the extend to which he sweetens his offer of settlement after the time required for filing or transmitting settlement offers to the clerk of court. A party who does not demand trial by jury is not assessable. Only extenuating circumstances will relieve an assessable party from the assessment.

RULE 11 - NDRAppP - Draft 2

Mr. Bucklin MOVED to amend the proposed amendment to Rule 11, lines 6 and 7, by using the following language: "After the briefs are filed, but not later than 70 days after the transcript has been filed, the clerk of the". Judge Burdick seconded the motion.

Judge Burdick withdrew his second to Mr. Bucklin's motion.

Mr. Loder seconded Mr. Bucklin's motion. No action was taken.

Mr. Higgins MOVED to amend lines 6 and 7 by using the following language: "Upon stipulation of all parties to the appeal, but not later than 70 days after the transcript has been filed, the clerk of the". Mr. Lamb seconded the motion. Judge Burdick seconded the motion. Motion CARRIED.

RULE 31 - NDRAppP - Draft 2

Justice Vogel MOVED to amend the proposed amendment to Rule 31, lines 8 and 9, to read: "All briefs shall be filed with the clerk of the supreme court." and to delete the remainder of the proposed amendment. Mr. Higgins seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt Rule 31(a), as amended. Judge Glaser seconded the motion. Motion CARRIED.

RULE 31

(a) Time for Serving and Filing Briefs; Where Filed. The appellant shall serve and file his brief within 40 days after the date on which the transcript is filed. The appellee shall serve and file his brief


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within 30 days after service of the brief of the appellant. The appellant may serve and file a reply brief within 14 days after service of the brief of the appellee, but, except for good cause shown, a reply brief must be filed at least 3 days before argument. All briefs shall be filed with the clerk of the supreme court.

Judge Smith MOVED to amend Rule 31(b), NDRAppP, after the word "clerk" add "of the supreme court" and strike "if typewritten and ten copies if printed". Mr. Higgins seconded the motion. Motion CARRIED.

RULE 31

(b) Number of copies to be filed and served. Seven copies and an original of each brief shall be filed with the clerk of the supreme court unless the court by order in a particular case shall permit a lesser number, and one copy shall be served on counsel for each party separately represented.

Mr. Bucklin MOVED that the staff attorney be requested to prepare a commentary to Rule 31(b) as to the consequences of failure to file. Judge Burdick seconded the motion. Motion CARRIED.

RULE 11 - NDRAppP - Draft 2

Mr. Lamb MOVED to amend Rule 11(c), line 60, by inserting the words "or reduce" after the word "extend." Judge Burdick seconded the motion. Motion CARRIED.

Mr. Higgins MOVED to amend Rule 11(c), line 51, by inserting the words "or reduction" after the word "extension." Justice Vogel seconded the motion. Motion CARRIED.

Mr. Lamb MOVED to adopt Rule 11, NDRAppP, as amended. Justice Vogel seconded the motion. Motion CARRIED.

RULE 11

TRANSMISSION AND FILING OF THE RECORD

(a) Time for Transmission; Duty of Appellant. Upon stipulation of all parties to the appeal, but not later than 70 days after the transcript has been filed, the clerk of the trial court shall transmit to the clerk of the supreme court the record on appeal. After filing the notice of appeal the appellant shall comply with the provisions of Rule 10(b) and shall take any other action necessary to enable the clerk to assemble and transmit the record. If more than one appeal is taken, each appellant shall comply with the provisions


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of Rule 10(b) and this subdivision, and a single record shall be transmitted within the period above stated.

(b) Method of Transmitting the Record. The clerk of the trial court shall number the documents comprising the record and shall transmit with the record a list of the documents correspondingly numbered and identified with reasonable definiteness. Documents of unusual bulk or weight and physical exhibits other than documents shall not be transmitted by the clerk unless he is directed to do so by a party or by the clerk of the supreme court. A party must make advance arrangements with the clerks for the transportation and receipt of exhibits of unusual bulk or weight.

Transmission of the record is effected when the clerk of the trial court mails or otherwise forwards the record to the clerk of the supreme court. The clerk of the trial court shall indicate, by endorsement on the face of the record or otherwise, the date upon which it is transmitted to the supreme court.

(c) Extension or Reduction of Time for Transmission of the Record. The supreme court on motion for cause shown may extend or reduce the time for transmitting the record or may permit the record to be transmitted and filed after the expiration of the time allowed or fixed. The supreme court may require the record to be transmitted and the appeal to be docketed at any time within the time otherwise fixed or allowed therefor.

(d) Retention of the Record in the Trial Court by Order of Court. The supreme court may provide by rule or order that a certified copy of the docket entries shall be transmitted in lieu of the entire record, subject to the right of any party to request at any time during the pendency of the appeal that designated parts of the record be transmitted.

(e) Stipulation of Parties That Parts of the Record Be Retained in the Trial Court. The parties may agree by written stipulation filed in the trial court that designated parts of the record shall be retained in the trial court unless thereafter the supreme court shall order or any party. shall request their transmittal. The parts thus designated shall nevertheless be a part of the record on appeal for all purposes.

(f) Record for Preliminary Hearing in the Supreme Court. If prior to the time the record is transmitted a party desires to make in the supreme court a motion for dismissal, for release, for a stay pending appeal,


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for additional security on the bond on appeal or on a supersedeas bond, or for any intermediate order, the clerk of the trial court at the request of any party shall transmit to the supreme court such parts of the original record as any party shall designate.

(g) Filing of the Record. Upon receipt of the record or of parts of the record authorized to be filed under the provisions of Rule 11(d) by the clerk of the supreme court following timely transmittal, and after the appeal has been docketed, the clerk shall file the record. The clerk shall immediately give notice to all parties of the date on which the record was filed.

(h) Dismissal for Failure of Appellant to Cause Timely Transmission. If the appellant fails to cause timely transmission of the record, any appellee may file a motion in the supreme court to dismiss the appeal. The motion shall 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, the expiration date of any order extending the time for transmitting the record, and by proof of service. The appellant may respond within 14 days after service on him.

RULE 10 - NDRAppP - Draft 2

Mr. Lamb MOVED to reconsider the previous action on Rule 10, NDRAppP. Mr. Higgins seconded the motion. Motion CARRIED.

Judge Burdick MOVED to amend Rule 10, line 55, by inserting the following language: "The reporter shall file with the transcript proof of service of the transcript upon the parties." Mr. Higgins seconded the motion. Motion CARRIED.

Justice Vogel MOVED to adopt Rule 10, as amended. Mr. Higgins seconded the motion. Motion CARRIED.

RULE 10

THE RECORD ON APPEAL

(a) Composition of the Record on Appeal. The original papers and exhibits filed in the trial court, three copies of the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the trial court shall constitute the record on appeal in all cases.

(b) The Transcript of Proceedings; Duty of Appellant to Order; Notice to Appellee if Partial Transcript is Ordered. Within 5 days after filing the notice of appeal


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the appellant shall order in writing from the reporter five or more copies of a transcript of such parts of the proceedings not already on file as he deems necessary for the inclusion in the record. If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion. Unless the entire transcript is to be included, the appellant, within the time above provided, shall file and serve on the appellee a description of the parts of the transcript which he intends to include in the record and a statement of the issues he intends to present on the appeal. If the appellee demands a transcript of other parts of the proceedings to be necessary he, within 10 days after the service of the statement of the appellant, shall file and serve on the appellant a designation of additional parts to be included. If the appellant fails to order those parts within 5 days after service of the designation of additional parts by the appellee, the appellee shall either order in writing the parts within 10 days after service of the designation of additional parts by the appellee or apply to the district court for an order requiring the appellant to do so. At the time of ordering, a party shall make satisfactory arrangements with the reporter for payment of the cost of the transcript. A party shall include in his order the following information:

(1) Caption of the case;

(2) Date or dates of trial;

(3) Portions of transcript requested;

(4) Number of copies required; and

(5) The names and addresses of the parties to be served with copies.

(c) Acceptance of Transcript Order. Time for Furnishing Transcript. The reporter promptly shall acknowledge in writing receipt of the transcript order and his acceptance of it if financial arrangements are satisfactory, with copies to the clerk of the trial court and the clerk of the supreme court and all counsel of record. The reporter shall serve and file the original and designated copies of the complete transcript or the partial transcripts ordered by the parties within 50 days after the date of receipt and acceptance of the first order for transcript received by the reporter. Three copies of the transcript shall be filed with the clerk of the trial court, and other designated copies shall be served upon parties designated in the order for transcript. The reporter shall file with the transcript proof of service of the transcript upon the parties.

If any party deems the period of time set by the reporter to be excessive or insufficient, or if the reporter needs an extension of time for completion of


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the transcript, the party or reporter may request a different period of time within which the transcript must be delivered upon written motion and affidavit as provided by Rule 27. The motion shall be heard by the trial court. A failure to comply with the order of the trial court fixing a time within which the transcript must be delivered may be punished as a contempt of court.

(d) Statement of the evidence or proceedings when no report was made or when the transcript is unavailable. If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments shall be submitted at the trial court for settlement and approval and as settled and approved shall be included by the clerk of the trial court in the record on appeal.

(e) Agreed statement as the record on appeal. In lieu of the record on appeal as defined in subdivision (a) of this rule, the parties may prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided in the trial court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with such additions as the trial court may consider necessary fully to present the issues raised by the appeal, shall be approved by the trial court and shall then be certified to the supreme court as the record on appeal and transmitted thereto by the clerk of the trial court within the time provided by Rule 11.

(f) Corrections or modification of the record. If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and that record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court either before or after the record is transmitted to the supreme court, or the supreme court, on proper suggestions or of its own initiative, may direct that the omission or misstatement be corrected, and, if necessary, that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the supreme court.


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ADJOURNMENT

Mr. Lamb MOVED to adjourn to 1:00 p.m. Mr. Rolfson seconded the motion. Motion CARRIED.

Members Present:

Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. Kirk Smith
Hon. Halvor L. Halvorson
Hon. William S. Murray
Hon. Robert Vogel
Mr. Jon M. Arnston
Mr. Leonard H. Bucklin
Mr. James L. Lamb
Mr. LeRoy A. Loder
Mr. Calvin N. Rolfson
Mr. Kent Higgins

RULE 12 - NDRAppP

Mr. Lamb MOVED that the staff attorney be requested to draft an amendment to Rule 12(a) to provide that the docket fee be paid at the time of the filing of the notice of appeal and be transmitted to the Supreme Court at the same time that a copy of the notice of appeal is filed. Mr. Rolfson seconded the motion. Motion CARRIED.

RULE 30 - NDRAppP

Mr. Lamb MOVED to adopt Rule 30, as amended. Mr. Rolfson seconded the motion. Motion CARRIED.

RULE 30

APPENDIX TO THE BRIEFS

(a) Duty of Appellant To Prepare and File; Content of Appendix; Time for Filing; Number of Copies. The appellant shall prepare and file an appendix to the briefs which shall contain: (1) the relevant docket entries in the proceeding below; (2) any relevant portions of the pleadings, charge, findings, or opinion; (3) the judgment, order, or decision in question; and (4) any other parts of the record 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 court from relying on such parts.

Unless filing is to be deferred pursuant to the provisions of subdivision (c) of this rule, the appellant shall serve and file the appendix with his brief. Eight copies


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of the appendix shall be filed with the clerk, and one copy shall be served on counsel for each party separately represented, unless the court shall by rule or order direct the filing or service of a lesser number.

(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 agreement, the appellant, not later than 10 days after the date on which the transcript is filed, shall serve on the appellee a designation of the parts of the record which 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, within 10 days after receipt of the designation, shall serve upon the appellant a designation of those parts. 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 be paid initially 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)[Reserved for future use.]

(d) Arrangement of the Appendix. At the beginning of the appendix there shall 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 shall be set forth following the list of contents. Thereafter, other parts of the record shall 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 such matter may be found shall be indicated in brackets immediately before the matter which is set forth. Omissions in the text of papers or of the transcript must be indicated by 3 spaced periods.


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Immaterial formal matters (captions, subscriptions, acknowledgments, etc.) shall 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 thereof shall be filed with the appendix and one copy shall be served on counsel for 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 may be 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 may require.

[Mr. Peterson joined the meeting]

RULE 38 - NDRAppP

Judge Burdick MOVED to adopt the proposed amendments to Rule 38, NDRAppP. Judge Murray seconded the motion.

Mr. Higgins MOVED a substitute motion to have Rule 38 read as follows: "If the court shall determine that an appeal is frivolous, or that any party has been dilatory in prosecuting the appeal, it may award just damages and single or double costs, including reasonable attorney's fees." Judge Burdick seconded the motion.

Mr. Peterson MOVED a substitute motion to strike the words "just damages and". Mr. Lamb seconded the motion. Motion LOST on a vote of 7-6.

The question was on the substitute motion of Mr. Higgins, which motion CARRIED.

Judge Burdick MOVED that Rule 38, NDRAppP, be adopted, as amended. Mr. Rolfson seconded the motion. Motion CARRIED.

RULE 38

DAMAGES FOR DELAY


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If the court shall determine that an appeal is frivolous, or that any party has been dilatory in prosecuting the appeal, it may award just damages and single or double costs, including reasonable attorney's fees.

NEXT MEETING

Judge Burdick MOVED that the next meeting of the Committee be held on October 27 and 28, 1977, commencing at 1:00 p.m. on October 27. Mr. Rolfson seconded the motion. Motion CARRIED.

RULE 46 - NDRAppP

Judge Burdick MOVED to amend the proposed amendment to Rule 46, lines 22 through 24, to read: "Upon application of any applicant failing the examination conducted by the state bar board, the supreme court may direct that the applicant be examined further by the state bar board or by one or more masters, who shall submit their recommendations to the court." Mr. Higgins seconded the motion. Motion CARRIED.

Mr. Peterson MOVED that Rule 46, NDRAppP, as amended, be adopted. Judge Burdick seconded the motion. Motion CARRIED.

ADMISSION TO PRACTICE

(a) Educational Requirements. No person shall be admitted to practice as an attorney and counselor at law in this state unless he is a resident of this state, at least 18 years of age, of good moral character, and has prepared himself for the practice of law by complying with the following educational requirements:

(1) Completion of three years of study leading to an acceptable college degree prior to beginning a three-year full-time or equivalent part-time course in law school; or

(2) Completion of two full years of such study prior to beginning a four-year, full-time or equivalent part-time course in law school, culminating in a bachelor of laws or equivalent degree from an approved law school prior to making an application for admission. An approved law school within the meaning of this rule is a law school that is or may become approved by the section of legal education and admission to the bar of the American Bar Association.

This subdivision does not apply to applicants for admission to practice law under the provisions of subdivision (c) of this rule.


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(b) Examination. All applicants for admission to practice in this state who do not seek to be admitted upon motion shall be examined concerning their legal and moral qualifications by the state bar board. Upon application of any applicant failing the examination conducted by the state bar board, the supreme court may direct that the applicant be examined further by the state bar board or by one or more masters, who shall submit their recommendations to the court.

(c) Admission Without Examination of Attorneys From Other States. At the discretion of the supreme court of this state, any person may be admitted to the bar of this state without examination upon satisfactory proof that he:

(1) is a resident of the State of North Dakota.

(2) is at least 18 years of age.

(3) is of good moral character.

(4) has been admitted to the bar of some other state, territory, or in the District of Columbia.

(5) shall have practiced law in such state, territory, or in the District of Columbia, for at least 5 years. The term "shall have practiced law" shall include: service as a judge or a court of record; the teaching of law as a full-time instructor in a duly accredited law school or schools; and the full-time performance of legal work in the trust department of a state or national bank or as government counsel or as house counsel, regardless of where such service is performed. It shall also include the active service as a full-time commissioned officer in a legal branch of the United States military service, performing work of a legal nature as a primary assignment substantially equivalent to that performed in civilian practice of law, or any combination of legal practice and performance of the services mentioned.

(6) has made payment of the fees required by law.

An application for admission to the bar of this state made pursuant to this subdivision shall be made upon a written motion directed to the court. The motion shall be made by a member of the bar of this state and shall be filed with the clerk of the supreme court. With the motion shall be filed the applicant's certificate of admission to practice in another state and his affidavit disclosing the place or places in the other state where he has practiced law. He


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also shall give the name and post office address of at least one judge of a court of general jurisdiction, who, during said time, has presided in a court before which he has practiced law. Whenever possible, he shall present the certificate of such judge or judges showing the above facts in support of his application. The affidavit of the applicant also shall disclose whether any proceedings in disbarment or suspension of his license to practice are pending against him or were pending against him at the time of his departure from the other jurisdiction and whether he still is an attorney in good standing in that jurisdiction. The applicant also must furnish affidavits of at least two attorneys of the other jurisdiction who practiced law contemporaneously with the applicant stating that he is of good moral character and a proper person to be licensed to practice law. Such application shall be referred to the state bar board which shall investigate the same and its sufficiency, including the moral qualifications of the applicant. Upon the report of the state bar board approving such application, a motion for admission upon such application may be entertained at any regular or special term of the supreme court.

Mr. Rolfson MOVED that Rule 46 be deleted from the North Dakota Appellate Rules and be submitted to the supreme court as a separate rule. Judge Burdick seconded the motion. Motion CARRIED.

RULE 50(b) - NDRCivP

Judge Burdick MOVED to adopt Rule 50, with the proposed amendments to subdivision (b). Mr. Higgins seconded the motion. Motion CARRIED.

RULE 50

MOTION FOR A DIRECTED VERDICT

(a) Motion for Directed Verdict-When Made-Effect. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.

(b) Motion for Judgment Notwithstanding the Verdict. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not


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granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for judgment notwithstanding the verdict may be made upon the files, exhibits, and minutes of the court. Pertinent facts that would not be a part of the minutes may be shown by affidavit. Either party may procure a complete or partial transcript of the proceedings for use upon hearing of the motion. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.

(c) Same - Conditional Rulings on Grant of Motion.

(1) If the motion for judgment notwithstanding the verdict, provided for in subdivision (b) of this rule, is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. In case the motion for a new trial has been conditionally denied, the respondent on appeal may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.

(2) The party whose verdict has been set aside on motion for judgment notwithstanding the verdict may serve a motion for a new trial pursuant to Rule 59 not later than ten days after


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entry of the judgment notwithstanding the verdict.

(d) Same - Denial of Motion. If the motion for judgment notwithstanding the verdict is denied, the party who prevailed on that motion may, as respondent, assert grounds entitling him to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict. If the appellate court reverses the judgment, nothing in this rule precludes it from determining that the respondent is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.

Section 28-18-09, NDCC

Mr. Higgins MOVED that a further study be made of this section by the staff attorney to make sure that the statute is superseded by the correct rules. Judge Smith seconded the motion. Motion CARRIED.

Section 28-18-06, NDCC

Mr. Higgins MOVED the same action on this section as on § 28-18-09, NDCC. Mr. Rolfson seconded the motion. Motion CARRIED.

RULE 35 - NDRCrimP

Mr. Higgins MOVED to reconsider the action by which Rule 35, NDRCrimP, was adopted, and to amend the penultimate sentence to read: "Relief under this rule may be granted by the court only upon motion of a party or its own motion and notice to the parties." Mr. Peterson seconded the motion. Motion CARRIED.

RULE 35

CORRECTION OR REDUCTION OF SENTENCE

The sentencing court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. The sentencing court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by that court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court of the United States denying review of, or having the effect of upholding, a judgment of conviction.


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The court may also reduce a sentence upon revocation of probation as provided by law. Relief under this Rule may be granted by the court only upon motion of a party or its own motion and notice to the parties. If the sentencing court grants relief under this Rule, it shall state its reasons therefor in writing.

SECTION 12.1-32-02(3), NDCC

Mr. Higgins MOVED that the commentary to Rule 35, NDRCrimP, show that § 12.1-32-02(3) has been superseded. Judge Smith seconded the motion. Motion CARRIED.

JUDICIAL DISTRICT LOCAL RULES

Mr. Rolfson MOVED to submit the proposed format on the local rules to the Local Rules Committee of the Judicial Council, with the recommendation that this format be followed. Mr. Bucklin seconded the motion. Motion CARRIED.

RULE VI, DISTRICT COURT RULES (CERTIFICATE OF READINESS RULE)

Judge Burdick MOVED to adopt the Certificate of Readiness Rule and submit it to the Supreme Court for its adoption and promulgation. Judge Glaser seconded the motion.

Mr. Higgins MOVED a substitute motion to table this matter and to place it on the agenda for the next meeting. Mr. Arntson seconded the motion. Motion CARRIED.

ADJOURNMENT

Mr. Higgins MOVED to adjourn. Judge Halvorson seconded the motion. Motion CARRIED.

________________________
Secretary