Joint Procedure Committee Meeting

Scheduled on Thursday, September 18, 1980 @ 2:00 PM

MINUTES OF MEETING

Joint Procedure Committee

September 18-19, 1980

CALL TO ORDER

The meeting was called to order at 1:00 p.m., September 18, 1980, by Justice Paul M. Sand, Chairman.

ATTENDANCE

Present

Hon. Gerald G. Glaser
Hon. Halvor L. Halvorson
Hon. Robert C. Heinley
Hon. Kirk Smith
Mr. Leonard H. Bucklin
Mr. Larry Kraft
Mr. LeRoy A. Loder
Mr. David L. Peterson

Absent

Hon. Eugene A. Burdick
Hon. Larry Hatch
Hon. William S. Murray
Hon. James H. O'Keefe
Hon. Robert Vogel
Mr. William A. Hill
Mr. Ward M. Kirby
Mr. James L. Lamb
Mr. Richard A. McKennett
Mr. Herbert L. Meschke
Mr. Russell G. Nerison

APPROVAL OF MINUTES

Mr. Peterson MOVED that the minutes be approved as submitted. Mr. Bucklin seconded the motion. Motion CARRIED.

RULE 2.1, SUPPLEMENTAL COURT RULES

Judge Smith MOVED to amend the first sentence of proposed Rule 2.1 to read:

"An attorney admitted and licensed to practice in a foreign state or country but not licensed to practice in North Dakota may appear in a proceeding in a court

-2-

of this State provided he first appoints as his associate a resident attorney admitted and licensed to practice in this State."

Mr. Bucklin seconded the motion. Motion CARRIED.

Mr. Peterson MOVED to amend the second sentence of proposed Rule 2.1 to read:

"The name and address of the associate attorney shall be on all pleadings before being filed by the clerk."

Judge Heinley seconded the motion. Motion CARRIED.

Judge Heinley MOVED to amend proposed Rule 2.1 by deleting the word "and" on line 9 and beginning a new sentence with the word "The". Judge Smith seconded the motion. Motion CARRIED.

Mr. Loder MOVED to adopt proposed Rule 2.1, as amended. Judge Smith seconded the motion. Motion CARRIED.

Nonresident Attorneys. An attorney admitted and licensed to practice in a foreign state or country, but not licensed to practice in North Dakota, may appear in a proceeding in a court of this State if he first designates as his associate a resident attorney admitted and licensed to practice law in this State. The name and address of the associate attorney must be shown on all pleadings being filed by the clerk. The associate attorney shall appear personally and, unless excused by the court, shall remain in attendance with the nonresident attorney in all appearances before the court.

RULE 3.1, SUPPLEMENTAL COURT RULES

Mr. Peterson MOVED to amend proposed Rule 3.1 by deleting lines 37 and 38 after the word "appearances" on line 37. Judge Smith seconded the motion. Motion CARRIED.

Mr. Bucklin MOVED that the committee on cameras in the courtroom be advised by the staff attorney of the provisions of paragraph (d) of this rule because of problems that may be encountered as to recordings. Mr. Peterson seconded the motion. Motion CARRIED.

Judge Glaser MOVED that in line 54 the word "party" be substituted for "side." Mr. Peterson seconded the motion. Motion CARRIED.

-3-

Judge Smith MOVED to delete the words "without permission of" in line 56, and insert "unless otherwise permitted by". Judge Glaser seconded the motion. Motion CARRIED.

Mr. Kraft MOVED to delete lines 58 through 65 and insert "Unless otherwise directed by the court, each argument shall be limited to one hour." Mr. Loder seconded the motion. Motion CARRIED.

Judge Heinley MOVED to adopt proposed Rule 3.1 as amended. Judge Smith seconded the motion. Motion CARRIED.

CONDUCT IN COURT

(a) Opening Court. In jury cases, when the court is about to convene, the bailiff or clerk will, by a rap of the gavel, command attention and announce the approach of the judge. Thereupon, all persons present will promptly and quietly rise and remain standing until the bailiff or clerk, by appropriate proclamation, has convened the court and the judge has taken his seat. Upon the close of the session, as announced by the judge, the bailiff or clerk, by a rap of the gavel, will command attention and all persons in the courtroom will promptly and quietly rise and remain standing until the judge has retired from the courtroom.

(b) Decorum.

(1) All persons entering the courtroom while court is in session shall immediately be seated and shall conduct themselves in a quiet and orderly manner. No person may enter or leave the courtroom while the court is charging the jury, except in an emergency.

(2) Counsel shall arise while addressing the court, except when stating an objection, and all statements and communications by counsel to the court shall be clearly and audibly made from the counsel table. While the court is in session, counsel may not approach the bench for private conversation without permission of the court.

(3) The examination of witnesses, as far as practicable, must be conducted from the counsel table. Only one counsel appearing for a party may be allowed to examine any witness without permission of the court.

-4-

(4) Whenever practical and appropriate, the judge must be robed in presiding over the trial of cases.

(5) All lawyers and court officials shall refrain from wearing articles of clothing suited primarily for sports or leisure time activities during court appearances.

(c)Assignment of Cases.

(1) Counsel shall observe the assignment of cases and keep advised of the progress of business of the court, so as to be ready when their cases are reached.

(2) No arrangements as to time or order of trial will be recognized unless approved by the court.

(d) Cameras and Sound Apparatus Prohibited. No camera, sound recorder, or other device, except those operated for official purposes, by or under the direction of the court, may be used to photograph, record, or broadcast proceedings of the court, nor may these devices be brought in or allowed to remain in the courtroom while proceedings are in progress.

(e) Arguments of Counsel.

(1) One Counsel Per Party. Unless otherwise permitted by the court, only one counsel appearing for a party may argue any question to the court or jury.

(2) Unless otherwise permitted by the court, each argument is limited to one hour.

RULE 4.2, SUPPLEMENTAL COURT RULES

It is the consensus of the committee members present that Rule 4.2 would not prohibit the 10-day notice request for continuances as practiced in Burleigh and Grand Forks Counties.

Judge Heinley MOVED to adopt proposed Rule 4.2. Judge Halvorson seconded the motion. Motion CARRIED.

-5-

CONTINUANCES

(a) Attorney Engaged. A party is entitled to a continuance on the ground that his attorney is actually engaged in another trial or hearing, but only for the duration of the particular trial or hearing in which the attorney is then engaged.

(b) Other Continuances. Motions for continuance must be promptly filed as soon as the grounds therefor are known and may be granted only for good cause shown, either by affidavit or otherwise. Stipulations for continuance will not be recognized except for good cause shown. Every continuance or postponement granted upon motion must be upon such terms as the court may impose.

Note to staff attorney: the commentary will take note of the discussion on this topic and indicate that the court may set the time frame.

RULE 8.1, SUPPLEMENTAL COURT RULES

Judge Smith MOVED that proposed Rule 8.1 be amended to read as follows:

"Unless otherwise ordered by the court, the parties shall proceed in the order in which they appear in the pleadings. In consolidated cases, third-party proceedings, and all other cases not otherwise provided for, the court shall designate the order."

Mr. Peterson seconded the motion. Motion CARRIED.

Judge Smith MOVED the adoption of Rule 8.1, as amended. Judge Heinley seconded the motion. Motion CARRIED.

PARTIES' ORDER OF PROCEEDING

Unless otherwise ordered by the court, the parties shall proceed in the order in which they appear in the pleadings. In consolidated cases, third-party proceedings, and all other cases not otherwise provided for, the court shall designate the order.

RULE 8.2, SUPPLEMENTAL COURT RULES

Mr. Loder MOVED to delete proposed Rule 8.2. Mr. Bucklin seconded the motion. Motion CARRIED.

-6-

RULE 8.3, SUPPLEMENTAL COURT RULES

Judge Smith MOVED to adopt proposed Rule 8.3. Judge Heinley seconded the motion. Motion CARRIED.

OPENING STATEMENTS

After the jury is impaneled and sworn and the trial is ready to proceed, counsel for the plaintiff may make an opening statement to the jury. Counsel for the defendant may follow immediately with an opening statement to the jury or defer it until the plaintiff has rested.

RULE 12.1, SUPPLEMENTAL COURT RULES

Mr. Peterson MOVED to adopt proposed Rule 12.1. Judge Glaser seconded the motion. Motion CARRIED.

APPOINTMENT OF GUARDIAN AD LITEM

If, in any action for an annulment, divorce, legal separation, or involving the custody or support of minor children, the court has special concern for the welfare of any minor children of the parties, the court shall appoint a guardian ad litem to represent the children. If a guardian ad litem is appointed, the court shall direct either or both parties to pay the fee of the guardian ad litem, in an amount to be approved by the court.

RECESS

Mr. Bucklin MOVED to recess to 9:00 a.m., September 19, 1980. Judge Smith seconded the motion. Motion CARRIED.

CALL TO ORDER

The meeting was called to order at 9:00 a.m., September 19, 1980, by Justice Paul M. Sand, Chairman.

ROLL CALL

Present

Hon. Gerald G. Glaser
Hon. Halvor L. Halvorson
Hon. Robert C. Heinley
Hon. Kirk Smith
Hon. Robert Vogel
Mr. William A. Hill (9:30)
Mr. Larry Kraft
Mr. James L. Lamb (9:30)
Mr. LeRoy A. Loder
Mr. David L. Peterson (9:45)

-7-

RULE 15.1, SUPPLEMENTAL COURT RULES

Judge Glaser MOVED to delete subdivision (c) from proposed Rule 15.1. Judge Smith seconded the motion. Motion CARRIED.

Judge Smith MOVED to adopt subdivisions (a) and (b) of proposed Rule 15.1. Mr. Loder seconded the motion. Motion CARRIED.

EXHIBITS

(a)Exhibits To Be Left With Clerk. All exhibits offered or received in evidence must be left with the clerk and retained in his custody, unless otherwise directed by the court.

(b) Exhibits Too Large for Filing To Be Returned. All physical exhibits, including books, maps, models, and documents, too large for convenient filing, offered by either party, may not be filed, but must be retained by the clerk until after the time for appeal has expired or until all remedies by way of appeal, motion for new trial and appeal therefrom are exhausted, at which time they shall be returned to the custody of the respective attorneys who offered them in evidence. If the attorney does not claim an exhibit within 60 days after being notified to accept return, the clerk may dispose of it as the court may by order direct. The clerk shall take a receipt for all exhibits returned.

RULE 16.1, SUPPLEMENTAL COURT RULES

Judge Smith MOVED to amend proposed Rule 16.1 by deleting "the district" in line 2. Mr. Kraft seconded the motion. Motion CARRIED.

Judge Glaser MOVED to adopt proposed Rule 16.1, as amended. Judge Halvorson seconded the motion. Motion CARRIED.

STIPULATIONS

No agreement or consent between the parties or their attorneys with respect to proceedings in court is binding in case of a dispute as to its terms unless reduced in writing and signed by the parties or their respective attorneys or made in open court and read into the record of the proceedings.

-8-

RULE 17.1, SUPPLEMEMTAL COURT RULES

Judge Vogel MOVED to amend proposed Rule 17.1(d)(1) by deleting lines 33 through 36 and inserting the following: "Appraisers for receivers may be appointed by the court." Judge Smith seconded the motion. Motion CARRIED.

Judge Glaser MOVED to amend proposed Rule 17.1(a) by deleting lines 2 through 19 and inserting the following: "Receivers shall meet the qualifications set out by statute. See Chapter 32-10, North Dakota Century Code." Judge Smith seconded the motion. Motion CARRIED.

Judge Glaser MOVED to amend proposed Rule 17.1(e)(1) by deleting the words "subsequent reports" and placing a period after the word "thereafter" in line 44; and deleting lines 45 through the word "$5,000." in line 49. Mr. Hill seconded the motion. Motion CARRIED.

Judge Smith MOVED to adopt Rule 17.1, as amended. Mr. Loder seconded the motion. Motion CARRIED.

RECEIVERS

(a) Qualifications of Receivers. Receivers shall meet the qualifications set out by statute. See Chapter 32-10, North Dakota Century Code.

(b) Attorneys for Receivers. Application. An attorney for the receiver may be employed only upon order of the court, upon written motion of the receiver stating the reasons for the requested employment and naming the attorney to be employed, who may not be interested in the action as attorney for any party without a written consent of the opposing parties filed with the clerk.

(c)Inventories of Receivers. Not later than 30 days after his appointment, the receiver shall file with the court a detailed report and inventory of all property, real or personal, of the estate, designating the property within his possession or control.

(d) Appraisal for Receivers.

(1) Appraisers. Appraisers for receivers may be appointed by the court.

(2) Appraisal by Receiver. If no appraisers are appointed, the receiver shall investigate the value of the several items listed as disclosed by the investigation.

(e) Reports of Receivers.

(1) Time for Filing. The receiver shall file one report each year, the first report 12 months after the appointment, and annually thereafter. Special reports may be ordered by the court and a final report must be filed upon the termination of the proceedings.

(2) Forms. The court may prescribe forms to be used for reports of a receiver.

(3) Fee. Application for fees of a receiver or his attorney may be made only at the time of the filing of a receiver's report.

RULE 19.1, SUPPLEMENTAL COURT RULES

Judge Vogel MOVED to retain proposed Rule 19.1. Mr. Kraft seconded the motion. Motion CARRIED.

RULE 24.1, SUPPLEMENTAL COURT RULES

Mr. Lamb MOVED to retain proposed Rule 24.1. Judge Heinley seconded the motion. Motion CARRIED.

RULE 30.1, SUPPLEMENTAL COURT RULES

It was requested by the members of the Committee that the forms suggested to be used with this Rule be eliminated except for the financial statement form. The Committee also wishes to retain this rule with changes as to ex parte order on eviction, and a definition of what must be included in the affidavit.

COMPLEX AND MULTI-DISTRICT LITIGATION

Mr. Malcolm H. Brown and Mr. Jos. A. Vogel, Jr., appeared before the Committee and expressed their views concerning this litigation.

This subject was referred to the staff attorney to attempt to draft a possible amendment to Rule 42 for the next meeting of this Committee.

RECESS

The committee recessed to 1:00 p.m., September 19, 1980.

-10-

CALL TO ORDER

The meeting was called to order at 1:00 p.m., September 19, 1980, by Justice Paul M. Sand, Chairman.

ROLL CALL

Present

Hon. Halvor L. Halvorson
Hon. Kirk Smith
Hon. Robert Vogel
Mr. William A. Hill
Mr. James L. Lamb
Mr. LeRoy A. Loder
Mr. David L. Peterson

RULE 31.1, SUPPLEMENTAL COURT RULES

Mr. Loder MOVED that we retain proposed Rule 31.1. Mr. Peterson seconded the motion. Motion CARRIED.

RULE 34.1, SUPPLEMENTAL COURT RULES

Mr. Loder MOVED that we do not retain proposed Rule 34.1. Judge Smith seconded the motion. Motion CARRIED.

RULE 34.2, SUPPLEMENTAL COURT RULES

Judge Smith MOVED to adopt proposed Rule 34.2. Mr. Loder seconded the motion. Motion CARRIED.

PROPERTY AND DEBT LISTING (DIVORCE CASES)

In all contested divorce cases the parties and their attorneys, prior to trial, shall jointly prepare a complete listing of their property and unpaid financial obligations. The parties shall assign values to the listed property either as an agreed value, or if not agreed, a plaintiff's estimate and defendant's estimate. The document must be dated and signed by both attorneys and plaintiff and defendant. It must be filed with the clerk at least one day prior to trial.

RULE 17.1, SUPPLEMENTAL COURT RULES

Mr. Loder MOVED to reconsider Rule 17.1. Judge Halvorson seconded the motion. Motion CARRIED.

-11-

Mr. Loder MOVED to amend Rule 17.1, line 56, by inserting "except by leave of the court" after the word "attorney." Judge Halvorson seconded the motion. Motion CARRIED.

Mr. Peterson MOVED to adopt Rule 17.1, as amended. Judge Halvorson seconded the motion. Motion CARRIED.

RECEIVERS

(a) Qualifications of Receivers. Receivers shall meet the qualifications set out by statute. See Chapter 32-10, North Dakota Century Code.

(d) Appraisal for Receivers.

(1) Appraisers. Appraisers for receivers may be appointed by the court.

(2) Appraisal by Receiver. If no appraisers are appointed, the receiver shall investigate the value of the several items listed as disclosed by the investigation.

(e) Reports of Receivers.

-12-

(2) Forms. The court may prescribe forms to be used for reports of a receiver.

(3) Fee. Except by leave of court, an application for fees of a receiver or his attorney may be made only at the time of the filing of a receiver's report.

RULE 36.1, SUPPLEMENTAL COURT RULES

Mr. Loder MOVED that Rule 36.1 be referred to the staff attorney for comparison with present rules of civil procedure and that he provide the committee with a summary of his findings. If he arrives at the conclusion that some portion of Rule 36.1 should be retained, he shall prepare a rule draft. Mr. Peterson seconded the motion. Motion CARRIED.

RULE 16, NDRCivP

Judge Smith MOVED to amend Rule 16, NDRCivP, on line 27 by deleting "by rule". Mr. Lamb seconded the motion. Motion CARRIED.

Mr. Loder MOVED to adopt Rule 16, NDRCivP, as amended. Judge Smith seconded the motion. Motion CARRIED.

PRETRIAL PROCEDURE - FORMULATING ISSUES

In any action after issue is joined, the court in its discretion may, and upon written request of a party shall, direct the attorneys for the parties to appear before it for a conference in advance of trial to consider;

(1) Simplication of the issues;

(2) The necessity or desirability of amendments to the pleadings;

(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;

(4) A limitation of the number of expert witnesses;

(5) The advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury;

(6) Such other matters as may aid in the disposition of the action.

The court shall make an order reciting the action taken at the conference, amendments allowed to the pleadings, and agreements made by the parties as to any

-13-

of the matters considered, and limiting the issues for trial to those not disposed of by admissions or agreements of counsel. The order controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish a pretrial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or to non-jury actions or extend it to all actions. Upon failure of counsel to appear, the court may grant a motion for dismissal or proceed with the conference, as may be appropriate.

RULE 28, NDRCivP, EXPLANATORY NOTE

Mr. Lamb MOVED to adopt the proposed explanatory note to Rule 28, NDRCivP. Judge Smith seconded the motion. Motion CARRIED.

Rule 28 is identical to Rule 28, FRCivP, except for the addition to subdivision (a) of a reference to persons authorized to administer oaths by the laws of this state and the last sentence which makes clear that depositions may be taken before a person commissioned by the court or pursuant to a letter rogatory in the United States as well as in foreign countries; and separation of subdivision (b) into two parts. After the division of subdivision (b) of the federal rule into two parts, it is now clear that a commission or letter rogatory may be issued for use in the United States and in foreign countries. The new subdivision (c) specifies the procedure for issuance of a commission or letter rogatory. A minor change was made to indicate that the letter should be addressed to the appropriate authority in a state or country. Also, the last sentence of subdivision (c) provides that only evidence obtained in a foreign country under these procedures need not be excluded because of the listed defects.

NEXT MEETING

The next two meetings of the Joint Procedure Committee will be held on October 30-31, 1980, and December 11-12, 1980.

RULE 40, NDRCivP, EXPLANATORY NOTE

Mr. Peterson MOVED to adopt the proposed explanatory note to Rule 40, NDRCivP. Judge Vogel seconded the motion. Motion CARRIED.

-14-

Rule 40 has the same purpose as Rule 40, FRCivP, but differs completely as to content. Prior to being amended, effective________________, this rule was identical to the federal rule.

Subdivision (a) provides for continuous session of district court, rather than distinct "terms" of court. The presiding judge is to oversee the calendaring process.

A combined Note of Issue and Certificate of Readiness is required by subdivision (b), which also prescribes its contents. Fourteen days after this document is filed, the case is to be placed on the trial calendar, unless a Certificate of Non-readiness has been filed by another party. This is a change from previous North Dakota practice, which only required the filing of a note of issue, not normally a triggering placement on a trial calendar. A call of the calendar is no longer necessary to determine whether a case is ready for trial. The document should not be filed unless the filing party is ready to have the case placed on the trial calendar.

Subdivision (e) provides for dismissal of untried cases after one year of inactivity, rather than after two years, as was the previous rule. Failure to file a Note of Issue and Certificate of Readiness within one year after the filing of the summons and complaint may also result in dismissal.

RULE 81, NDRCivP, EXPLANATORY NOTE

Mr. Peterson MOVED to adopt the proposed explanatory note to Rule 81, NDRCivP. Judge Halvorson seconded the motion. Motion CARRIED.

Rule 81 has the same purpose as Rule 81, FRCivP, but deviates completely as to content and construction.

Subdivision (a) and Table A were both amended [effective ___________] to make clear that Table A is not an exclusive list of the special procedure which is excepted from these rules.

The North Dakota Supreme Court has held that these rules govern procedures on appeal to district court from a decision of an administative agency except where applicable statutes are inconsistent with the rules. See Reliance Insurance Company v. Public Service Commission, 250 N.W.2d 918 (N.D. 1977), and Schroeder v. Burleigh County Board of Commissioners, 252 N.W.2d 893 (N.D. 1977).

-15-

RULE 83, NDRCivP, EXPLANATORY NOTE

Judge Vogel MOVED to adopt the proposed explanatory note to Rule 83, NDRCivP. Mr. Peterson seconded the motion. Motion CARRIED.

Rule 83 is derived from the last sentence of Rule 83, FRCivP.

Prior to being substantially amended [effective __________], Rule 83 was very similar to Rule 83, FRCivP, allowing the making of "local" rules. Emphasis is on the use of rules with statewide application rather than for only one district. These must be of sufficient importance to justify statewide promulgation by the North Dakota Supreme Court.

Even though the district courts are no longer allowed to make or promulgate "local" rules, each court still has the authority to regulate its practice to allow for justice in a particular case. See In re United Corp.,283 F.2d 593 (3rd Cir. 1960), and Wright § Miller, Federal Practice and Procedure: Civil § 3155.

RULE 21, NDRCrimP, EXPLANATORY NOTE

Judge Smith MOVED to adopt the amended explanatory note to Rule 21, NDRCrimP. Judge Vogel seconded the motion. Motion CARRIED.

Rule 21 is an adaptation of Rule 21, FRCrimP, and provides the defendant with a procedural device for changing the place of a trial. This may be accomplished by means of either a motion for a change of place of trial alleging either that prejudice exists against the defendant or that it is a necessity for the convenience of parties and witnesses and is in the interest of justice. By superseding Section 29-15-03, NDCC, the one-change limitation has been removed in favor of the exercise of sound discretion.

Rule 21 contemplates that all transfers shall be made from one court to a corresponding court of the same grade and classification.

Subdivision (a) differs from its federal counterpart in that it provides for change of venue within the confines of the court structure of North Dakota. The rule is intended for application in cases in which prejudice in the community will make it difficult or impossible to select a fair and impartial jury. It is not designed for cases in which it is claimed that the

-16-

judge is biased because there are statutory remedies enabling a party to disqualify a judge on the ground of personal bias or prejudice. [See Sections 29-15-13 through 29-15-19 and Section 29-15-21, NDCC.] In passing on a motion for transfer on the ground that the defendant cannot obtain a fair and impartial trial in the district, the ultimate question to be decided is whether it is impossible to select a fair and impartial jury. It is suggested that the proper occasion for such a determination is upon the voir dire examination.

Because the court has considerable discretion in passing on motions under subdivision (a) the burden is upon the defendant to show a reasonable likelihood of prejudice. The common judicial attitude is one which holds that relief should be granted only in exceptional cases. In determining whether to grant relief in cases where it is claimed that pretrial publication has made prejudice inevitable, four important factors must be considered: (1) whether the publicity was recent, widespread, and highly damaging to the defendant; (2) whether the prosecution was responsible for the ooo objectionable material, or if it emanated from independent sources; (3) whether an inconvenience to the prosecution and the administration of justice will result from a change of venue or continuance; and (4) whether a substantially better panel can be sworn at another time or place.

Subdivision (b) grants to the court, on motion of the defendant, the power to transfer any proceeding "for the convenience of parties and witnesses, and in the interest of justice." Subdivision (b) was designed to provide a remedy against the prosecution which initiates a criminal action in any important forum. It implements the policy that venue should be chosen to minimize the inconvenience to the defense. The rule recognizes the special importance in criminal prosecutions of seeking a convenient place for trial. The distinction between a motion under subdivision (a) and one under subdivision (b) is that pursuant to a motion under subdivision (a), the defendant is complaining of prejudice in the county or municipality where the case is pending and is seeking to have the case transferred elsewhere to avoid such prejudice. But on a motion pursuant to subdivision (b), the defendant's position is not that the present county or municipality is "bad," but that another county or municipality, usually but not always of his residence, would be more convenient. Of necessity his motion and his proof must go

-17-

to establishing the superiority of the county or municipality which he has in mind. If a motion is made pursuant to subdivision (b), the court should examine all the circumstances of the case and determine what place of trial will best serve for convenience and in the interest of justice. [For list of elements the Supreme Court has considered appropriate in exercising discretion under a 21(b) motion, see Wright, Federal Practice and Procedure: Criminal § 344 (1969); see also, Platt v. Minnesota Mining and Manufacturing Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1963).]

Subdivision (c) is similar to its federal counterpart [21(c)] to the extent that it places a responsibility upon the court transmitting the case to forward to the court to which the action or proceeding is transmitted all papers in the action or proceeding (or duplicates thereof) together with any bail which may have been received.

The provision of subdivision (c) which requires that the prosecuting officers of the case follow the case to its new venue tracks with existing North Dakota law [Section 29-15-12, NDCC] and has no federal counterpart. It provides that the judge ordering the change of venue shall preside at the trial. This provision is consistent with existing law [see Section 25-05-22, NDCC (District Judges to act only within their districts--Exceptions.)] and is constitutionally based [see § 116, North Dakota Constitution (1899)]. It does modify previous case law as found in State v. Garrison, 276 N.W. 693 (N.D. 1937), and State v. Thomson, 34 N.W.2d 80 (N.D. 1948).

This provision is intended to accomplish two objectives: first, it should result in a prompt disposition of the case at trial; and second it will prevent the defendant from securing a different judge merely by obtaining a change of venue without having to file an affidavit of prejudice.

Finally, subdivision (c) provides for the payment of costs of trial to be submitted to the county in which the action was commenced.

Subdivision (d) has no similar counterpart in the federal rule. It requires the court to which the action was transferred to retransmit (after acquittal or conviction) all papers in the action or proceeding to the court in which the action was commenced.

-18-

Subdivision (e) tracks with present law and practice [Section 29-15-11, NDCC (Removal by state Procedure.)] and has no similar federal counterpart. This subdivision grants to the prosecution the right to move for transfer of the action or proceeding if it will promote the ends of justice.

Subdivision (f) was added to incorporate the provisions of Section 29-15-05, NDCC (Disposition of defendant upon removal).

RULE 57, NDRCrimP, EXPLANATORY NOTE

Mr. Peterson MOVED to adopt the explanatory note to Rule 57, NDRCrimP. Judge Halvorson seconded the motion. Motion CARRIED.

Rule 57 is adapted from Rule 57(b), FRCrimP, and after being amended [effective _____________], is identical to Rule 83, NDRCivP, which was also amended at the same time.

Unlike Rule 57(a), FRCrimP, this rule does not allow the district courts to make "local" rules. Each court does have the authority to regulate its practice to allow for justice in a particular case. See Wright § Miller, Federal Practice and Procedure: Civil § 3155.

RULE 801, NDREv, EXPLANATORY NOTE

Judge Vogel MOVED to adopt the explanatory note to Rule 801, NDREv. Mr. Hill seconded the motion. Motion CARRIED.

The definition of hearsay contained in this rule is dependent, in part, upon the definition of a statement contained in subdivision (a). In this regard, it should be noted that nonverbal conduct, to be a statement, and thus hearsay, must be intended by the party to be an assertion. Nonassertive conduct is not a statement and therefore not objectionable as hearsay. Thus, pointing out a suspect in response to the question, "Who did it?" is assertive conduct and, if it otherwise falls within the definition, hearsay. Conversely, the act of opening an umbrella is not intended to be assertive, is not hearsay, and may be offered as substantive evidence that rain was falling at a certain place and time.

Hearsay is defined in subdivision (c) as a statement made by a declarant, other than one made at the trial or hearing offered to prove the truth of the matter asserted. This definition is of two distinct parts. The first is that the statement is one not made

-19-

at the trial in which it is offered.

The second is that the statement must be offered to prove the truth of its content, i.e., the matter asserted in the statement. If offered for other purposes, e.g., to show that the declarant in fact made a statement -- any statement -- and, thus, was conscious at a particular time, the statement is not objectionable as hearsay. See e.g., Chester v. Einerson, 76 N.D. 205, 34 N.W.2d 437 (1948). The reason for this requirement is that it is only when a statement is offered to prove the truth of the matter asserted that there is a lack of the safeguards used to insure credibility of the declarant. It is this lack of an oath and cross-examination of the declarant that warrants the exclusion of evidence as hearsay.

It should be noted that subdivision (c) does not define as hearsay statements made out of the presence of a party against whom offered. The presence or absence of a party is not, nor has it ever been, a criterion by which hearsay is defined. It should be discarded as a "remarkably persistent bit of courthouse folklore." McCormick on Evidence, § 246 at 586 (2d ed. 1972).

Subdivision (d) exempts from the hearsay definition, and allows as substantive evidence, two types of statements which are technically hearsay. The reason for the exemptions are that the dangers normally attendant to receiving hearsay statements are at least partially removed in the exempted situations. In subdivision (d)(1), the opportunity to cross-examine the declarant is present. In subdivision (d)(2), the nature of the adversary system strengthens the reliability of an admission by a party-opponent.

Subdivision (d)(1)(i) follows Rule 801, Uniform Rules of Evidence, allowing prior inconsistent statements always to be used as substantive evidence in civil cases and, if the prior statement was made under oath in criminal cases. This varies from Rule 801 of the Federal Rules of Evidence, which requires that the prior statement be made under oath in all cases. See the discussion of Rule 801, Federal Rules of Evidence, in State v. Igoe, 206 N.W.2d 291 (N.D. 1973).

Subdivision (d)(1)(iii) was added [effective _______________] to conform to the federal rules. This provision was omitted from the original promulgation of the Federal Rules of Evidence but was added soon thereafter.

-20-

Subdivision (d)(2), for the reasons stated above, exempts from the hearsay definition admissions of a party-opponent. This comports, generally, with the philosophy expressed by the North Dakota Supreme Court. See the discussion of the comparable federal rules in Starr v. Morsette, 236 N.W.2d 183 (N.D. 1975).

RULE 4, NDRAppP, EXPLANATORY NOTE

Mr. Hill MOVED to adopt the explanatory note to Rule 4, NDRAppP. Mr. Peterson seconded the motion. Motion CARRIED.

This rule is derived from Rule 4, FRAppP, without substantial change. Subdivision (a) omits reference to bankruptcy, or maritime claims and provides for a single period of 60 days to file a civilnotice of appeal, rather than 30 days in the ordinary suit and 60 days if the United States is a party, which is the federal practice.

Subdivision (b) and the period for filing a criminal notice of appeal are taken intact from the federal rule.

Unlike the federal rule, there is a distinct difference between civil and criminal appeals as to when the time for appeal starts to run. Given the existing state practice with respect to entry of orders and judgment, time under civil appeals will run from "service of notice of entry" of the order or judgment. This differs from the federal rule which provides that the period is to run from "the date of entry." The responsibility under subdivision (a) is shifted to counsel to serve the notice and commence the period for appeal. The time limits for taking an appeal would not prevent the taking of an appeal at any time after entry of the judgment or order and before service of notice of entry.

ADJOURNMENT

Mr. Peterson MOVED to adjourn to October 30, 1980, at 1:00 p.m. Judge Vogel seconded the motion. Motion CARRIED.

____________________________
Secretary

Joint Procedure Committee Meeting

North Dakota Supreme Court

District Courts

Municipal Courts

About Us

Contact Us

Jobs With Us

Privacy Statement

Security Policy

Disclaimer