Joint Procedure Committee Meeting

Scheduled on Thursday, September 18, 1986 @ 10:00 AM

MINUTES OF MEETING

Joint Procedure Committee

September 18-19, 1986

CALL TO ORDER

The meeting was called to order at 9:00 a.m., September 18, 1986, by Justice H. F. "Sparky" Gierke, Chairman.

ATTENDANCE

Present:

Mr. Arne Boyum, Jr.
Hon. Eugene A. Burdick
Mr. Robert C. Heinley
Hon. Ronald Hilden
Mr. Dwight C. H. Kautzmann
Professor Larry Kraft
Mr. LeRoy A. Loder 
Mr. Ronald McLean
Mr. David L. Peterson

Absent:

Hon. Wallace D. Berning
Mr. Leonard A. Bucklin
Hon. Gerald G. Glaser
Hon. Frank J. Kosanda
Mr. James L. Lamb
Hon. Lawrence A. Leclerc
Hon. Beryl J. Levine
Hon. James H. O'Keefe
Ms. Cathy Howe Schmitz
Hon. Kirk Smith

APPROVAL OF MINUTES

Judge Burdick MOVED that the minutes of the Joint Procedure Meeting of January 23, 1986, be approved as submitted. Professor Kraft seconded the motion. Motion CARRIED.

Rule 31, NDRAppP

Justice Gierke reported his findings to the committee pertaining to the number of cases per year that an appellee fails to file a brief. The number is quite low and involves approximately 5 cases per year. The concern however is that this was not happening six years ago and it appears to be increasing. There is not much that the Court can do by way of sanctions. If an appellee does not file a brief, it burdens the Court with more work.


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Judge Hilden indicated that one of the ways to address this would be to assess costs if the appellee does not file a brief. Mr. McLean questioned whether this could be treated in the same manner as motion practice in Minnesota, i.e. if the appellee does not file a brief then the appellee automatically loses. Mr. Loder indicated that this issue should be dealt with on a case-by-case basis. He did not believe that it was right to let an individual lose their case if the brief is not filed. Mr. Kautzmann suggested that any attorney who does not file a brief be assessed $500.00 and be required to file the brief. If the brief is not filed within a certain time period, the attorney representing the appellee cannot appear before the Supreme Court for a period of one year.

Professor Kraft MOVED that this issue be referred to the Professional Responsibility Committee. Judge Burdick seconded the motion.

Discussion on the motion was lengthy. Several members of the committee questioned whether having the person who fails to file an appellee's brief appear before the Disciplinary Board would solve the problem. The Supreme Court simply wants the appellee brief to be filed. Mr. Kautzmann indicated that Judge Hilden's suggestion of having costs assessed would be the proper solution. Justice Gierke called for the vote on the motion. Motion CARRIED.

Mr. Loder MOVED to amend Rule 31(a), NDRAppP, by referring to appellant's brief and appellee's brief which would make the rule gender neutral. Judge Burdick seconded the motion. Motion CARRIED.

(a) Time for Serving and Filing Briefs; Where Filed. The appellant shall serve and file his appellant's brief within 40 days after the date on which the transcript is filed, but if no transcript is ordered, within 40 days after the notice of appeal is filed. The appellee shall serve and file his appellee's brief 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.


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EXPLANATORY NOTES TO RULES APPROVED AT THE SEPTEMBER 1985 MEETING

RULE 38, NDRCivP

Judge Burdick MOVED to approve the explanatory note to Rule 38, NDRCivP. Judge Hilden seconded the motion. Motion CARRIED.

RULE 48, NDRCivP

Judge Burdick MOVED to approve the explanatory note to Rule 48, NDRCivP. Professor Kraft seconded the motion. Motion CARRIED.

RULE 23, NDRCrimP

The committee reviewed Rule 23(d), NDRCrimP. Mr. Kautzmann indicated that subdivision (d) should track the Federal rule. Mr. Kautzmann MOVED to amend Rule 23(d) and the explanatory note to track the Federal rule. Mr. McLean seconded the motion. Motion CARRIED.

Judge Burdick MOVED to approve the explanatory note to Rule 23, NDRCrimP, unless the rule and explanatory note are amended before the current amended rule and explanatory note are submitted to the Court. Mr. Kautzmann seconded the motion. Motion CARRIED.

RULE 45, NDRCivP

The committee discussed current Rule 45, NDRCivP. Professor Kraft suggested that the whole rule be redrafted. The language is very poor in subdivision (a) as well as in subdivision (c). Judge Burdick MOVED to reconsider Rule 45 and that staff revise the rule to eliminate the inconsistencies and the ambiguous and redundant language for consideration at a future meeting. Mr. Loder seconded the motion. Motion CARRIED.

Professor Kraft volunteered to help redraft Rule 45.

RULE 58, NDRCivP

Judge Burdick recommended a style change to the explanatory note to Rule 58, NDRCivP. He suggested the following change: on page 33, line 5, delete the word "where" and insert in lieu thereof the words "in which". Mr. Loder pointed out that on page 33, line 1 of the meeting materials the explanatory note refers to


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Section 28-2001, NDRC 1943, and suggested that the new statutory citation be inserted.

Judge Burdick MOVED to approve the explanatory note to Rule 58, NDRCivP, as amended. Mr. Kautzmann seconded the motion. Motion CARRIED.

Rule 58, NDRCivP

Explanatory Note

This rule is derived from Section 28-2001, NDRC 1943.

The rule has not changed North Dakota practice but differs substantially from the federal rule. The rule was amended, effective __________________, to change the document in which the judgment must be entered from the judgment book to the register of civil actions.

RULE 68, NDRCivP

The committee discussed the pitfalls of Rule 68, NDRCivP, i.e. bad faith offers. The committee wished to think about this issue and to wait and see if the federal rule would be amended in the near future.

Mr. Kautzmann MOVED to approve the explanatory note to Rule 68, NDRCivP. Judge Hilden seconded the motion. Motion CARRIED. Judge Burdick proposed style changes to the language of Rule 68 and to the explanatory note which were accepted by the committee. The style changes are as follows:

Page 34, line 11: overstrike the words "shall be" and insert immediately thereafter the word "is"

Page 34, line 14: overstrike the word "must" and insert immediately thereafter the word "shall"

Page 34, line 17: overstrike the words "When the" and insert immediately thereafter the word "If"

Page 34, line 23: overstrike the words "prior to" and insert immediately thereafter the word "before"

Page 35, line 31: overstrike the word "such" and insert immediately thereafter the word "the" and overstrike the word "be" and insert immediately thereafter the word "is"

Page 35, line 32: overstrike the word "shall" and insert immediately thereafter the words


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"may not", overstrike the word "no" and overstrike the words "he recover" and insert immediately thereafter the words "the recovery is"

Page 35, line 34: overstrike the word "shall" and insert immediately thereafter the word "must"

Page 35, line 35: overstrike the words "he shall have" and insert immediately thereafter the words "the defendant is entitled to"

Page 35, line 36: overstrike the word "such" and insert immediately thereafter the word "the" and overstrike the word "shall" and insert immediately thereafter the word "may"

Page 36, line 71: overstrike the word "When" and insert immediately thereafter the word "If"

Page 36, line 75: overstrike the word "shall" and insert immediately thereafter the word "must"

Page 36, line 78: overstrike the word "shall" and insert immediately thereafter the word "must"

Page 37, line 81: overstrike the word "shall" and after the word "remain" insert a "s"

Page 37, line 83: overstrike the word "the" and insert immediately thereafter the word "its"

Page 37, line 84: overstrike the words "of the same"

Page 38, line 1: after the word "is" insert the word "substantially"

Rule 68, NDRCivP

OFFER OR CONFESSION OF JUDGMENT. TENDER

(a) Offer of Judgment. At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within 10 days after the service of the offer, the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon


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the clerk shall enter judgement upon order of the court. An offer not accepted shall be is deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must shall pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the If liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to before the commencement of hearings to determine the amount or extent of liability.

(b) Tender of Money in Lieu of Judgment. If the action be for the recovery of money, instead of the offer of judgment provided for in subdivision (a) of this rule, the defendant may tender to the plaintiff the full amount to which he is entitled, together with costs and disbursements then accrued. If such the tender be is not accepted, the plaintiff shall may not have no costs and disbursements unless he recover the recovery is more than the sum tendered; and the defendant's costs and disbursements shall must be deducted from the recovery, or, if they exceed the recovery, he shall have the defendant is entitled to judgment for the excess. The fact of such the tender having been made shall may not be pleaded or given in evidence.

(c) Confession of Judgment.

. . .

(3) The statement must be presented to the district court and, if the same is found sufficient, the court shall make an order that judgment be entered by the clerk,. whereupon the statement and order may be filed in the office of the clerk, who shall enter in the judgment book a judgment for the amount confessed with costs. The statement, and affidavit with the order for judgment, and judgment shall thenceforth become entered constitute the judgment roll. Execution may be issued and enforced in the same manner as upon judgments in other cases. in such court. When If the debt for which the judgment is recovered is not all due, or is payable in installments, and the installments are not all due, the execution may issue upon such thatjudgment for the collection of such installments as have become due, and shall must be in the usual form, but shall must have endorsed thereon by the attorney or person issuing the same a direction to the sheriff to collect the amount due on such the judgment, which amount shall must be stated, with interest thereon and the costs of said the judgment. Notwithstanding the issue and collection of suchthe execution, the judgment shall remains as security for the installments thereafter to become due, and whenever any further installments become due, execution in like manner may be issued for the its collection and enforcement of the same.


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Rule 68, NDRCivP

Explanatory Note

Subdivision (a) is substantially identical to Rule 68, FRCivP, except for a provision that the clerk may enter a judgment only upon order of the court.

* * * * * *

RULE 3.1, NDROC

Professor Kraft MOVED to reconsider Rule 3.1, NDROC. Judge Burdick seconded the motion. Motion CARRIED.

Judge Burdick indicated that the proposed language to Rule 3.1(b), NDROC, burdens the clerk. It should be sufficient to say that the clerk shall not accept for filing any document which includes in the name of the litigants any name not included in the complaint. Also, it may be a problem to require the clerk to keep on file a copy of all rejected documents. The committee discussed whether the language should be contained in subsection (b) or whether a new subsection should be added to Rule 3.1. The committee also discussed the fact that the language may more properly belong in Rule 5(d)(4), NDRCivP. The committee was referred to page 9 of the January 23, 1986 committee minutes to review the language that Judge Burdick proposed in amending Rule 5.

Mr. Kautzmann MOVED to delete the proposed language on lines 11-19 on page 39 of the meeting materials. Judge Hilden seconded the motion. Motion CARRIED.

Mr. Kautzmann MOVED to reject the explanatory note to Rule 3.1, NDROC. The committee discussed whether a motion was necessary to reject the explanatory note since Rule 3.1 was not amended. Mr. Kautzmann withdrew his motion.

Judge Burdick MOVED to overstrike the words "Until July 1, 1982, either legal or" on page 39, line 6 and to overstrike the words "letter size papers may be filed." on page 39, line 7. Judge Hilden seconded the motion. Motion CARRIED.

Rule 3.1, NDROC

PLEADINGS

(a) Legibility and Numbering. All pleadings and other instruments must be typewritten, printed, or reproduced and easily readable. Each sheet must be separately numbered. Pleadings and other papers filed with the court, except as otherwise permitted by the court, must be prepared on 8 ½


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x 11 inch white paper. Until July 1, 1982, either legal or letter size papers may be filed.

(b) Spacing and Names. Writing must appear on one side of the sheet only and must be double-spaced, except for quoted material. Names must be typed or printed beneath all signatures.

RULE 68, NDRCivP (cont'd)

Mr. Peterson requested staff counsel to draft a proposed Rule 68, NDRCivP, for consideration at the next meeting whereby a plaintiff may make an offer of judgment. The committee suggested contacting the Federal Rules Committee or the ATLA or ABA for input.

RULE 5, NDRCivP

Judge Burdick submitted a proposed amendment to Rule 5(d)(4), NDRCivP, for the committee's consideration since Rule 3.1, NDROC, was not amended. The language is as follows: The clerk must not accept for filing any document that adds a party to the action or proceeding without an order of the court or pursuant to Rule 14. The clerk shall endorse on the document a notation that the document is rejected for filing pursuant to this rule and return the document to the person who tendered it for filing. Mr. McLean MOVED to approve the amendment to Rule 5(d)(4), NDRCivP. Mr. Loder seconded the motion. Motion CARRIED. Professor Kraft abstained.

Rule 30(a), NDRAppP

The amendment to Rule 30(a), NDRAppP, enumerates what documents should be included in the appendix. Professor Kraft indicated that Rule 47.1, NDRAppP, should be reviewed so that it does not conflict with the rest of the appellate rules. Mr. Peterson indicated that he has a problem with Rule 30(b) in that often times attorneys do not call concerning what material is going to be put into the appendix. Judge Burdick recommended several style changes to the language in proposed Rule 30(a), NDRAppP. They are as follows:

Page 44, line 5: after the word "following" insert the word "relevant"

Page 44, line 8: delete the words "lower court" and after the word "sheet" insert the words "of the lower court"

Page 44, line 10: insert a "," after the word "complaint"


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Page 44, line 14: delete the word "thereto"

Page 44, line 16: delete the word "those"

Page 44, line 21: delete the word "opinion" and insert in lieu thereof the words "memorandum of decision"

Page 44, line 24: delete the words "order or"

Page 45, line 29: delete the words "the parties wish"

Page 45, line 30: delete the words "to direct" and after the word "court" insert the words "is invited"

Page 45, line 32: overstrike the word "prevent" and insert immediately thereafter the word "preclude"

Judge Burdick MOVED to approve proposed Rule 30(a), NDRAppP, as amended. Professor Kraft seconded the motion. Motion CARRIED.

Proposed Rule 30(a), NDRAppP

APPENDIX TO THE BRIEFS

(a) Duty of Appellant to Prepare and File; Contents of Appendix; Time for Filing; Number of Copies. The appellant shall prepare and file a separately bound appendix to the briefs which must contain: a table of contents, with page references, and only the following relevant portions of the lower court record:

1. a table of contents, with page references; the docket sheet of the lower court;

2. the relevant docket entries in the proceeding below; the indictment, information, or complaint, as amended;

3. any relevant portions of the pleadings, charge, findings, or opinion; the answer, counterclaim, cross claim, and replies;

4. the judgement, order, or decision in question; and parts of any pre-trial order relevant to the issues on appeal;

5. any other parts of the record, including portions of the transcript, to which the parties wish to direct the particular attention of the court. any supporting memorandum of decision, findings of fact and conclusions of law filed or delivered orally by the court;

6. the judgment, order, or decision in question;

7. any other orders to be reviewed;

8. the instruction in question, if the correct-


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ness of a jury instruction is in issue, and any other relevant part of the jury charge;

9. any other parts of the record, including portions of the transcript, to which the particular attention of the court is invited.

The fact that parts of the record are not included in the appendix does not prevent preclude the parties or the court from relying on those parts of the record.

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

COMMISSION ON VICTIMS AND WITNESSES OF CRIME

The Governor's Commission on Victims and Witnesses of Crime, of which Judge Hilden is a member, has studied the issue of videotaping minor witnesses' testimony. Judge Hilden brought a copy of the proposed rule and the proposed statute regarding videotaping of minor witnesses for the Joint. Procedure Committee to review. Judge Hilden requested that this issue be placed on the agenda for the next meeting. Judge Burdick indicated that Rule 807 of the Uniform Rules of Evidence entitled Child Victim or Witness was reviewed at the National Conference of Commissioners on Uniform State Laws. Judge Burdick asked that Rule 807 of the Uniform Rules of Evidence, as amended, be placed on the agenda for the next meeting.

RECESS

The meeting recessed until 1:15 p.m., September 18, 1986.

CALL TO ORDER

The meeting was called to order at 1:15 p.m., September 18, 1986, by Justice H. F. "Sparky" Gierke, Chairman.

ATTENDANCE

The roll call remained the same as in the morning session, except Judge Hilden was absent and James Lamb was present.

RULE 35, NDRCrimP

The committee reviewed the proposed language changes to Rule 35, NDRCrimP. Mr. Kautzmann pointed out that if the sentencing court grants relief under this rule it shall state its reasons in writing. Mr. Kautzmann indicated that if reasons are given when relief is granted, the court should also be required to give its reasons when the court denies relief under Rule 35. Mr. Kautzmann also pointed out that under the


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Rule it is arguable as to whether a defendant could receive a deferred imposition of sentence. The committee reviewed the explanatory note after Rule 35 and decided to defer action until staff counsel could provide copies of the 1978 Minutes of the Joint Procedure Committee and of the case entitled State v. Rueb, 249 N.W.2d 506 (N.D. 1976).

JURY RULES

The committee reviewed the letter from Judge Lawrence Leclerc and the Andrews v. O'Hearn, et al. decision. Based upon the Andrews v. O'Hearn case, specifically footnote 26, staff counsel prepared a proposed amendment to Rule 33(b), NDRCrimP, and Rule 59(b), NDRCivP. Judge Burdick felt that the issue of attorneys speaking with jurors after a trial has concluded to determine whether there was juror bias or misconduct should be addressed in the Canons of Ethics. Mr. McLean and Mr. Kautzmann agreed with Judge Burdick. However, Mr. Kautzmann pointed out that there may be a problem in addressing this issue as a Canon because of the First Amendment. Judge Burdick MOVED to refer this issue to the Ethics Committee. Professor Kraft seconded the motion. Motion CARRIED. Mr. Peterson indicated that perhaps this issue would be more properly addressed in Rule 606(b), NDREv. However, he questioned whether this issue needs to be addressed since there is caselaw on it.

The committee reviewed proposed Rule 6.7, NDROC, entitled Communications to Jury. This proposed rule is also based on the Andrews decision and pertains to a bailiff's communications to a jury. The committee discussed the problem with juror handbooks in the jury room because there are legal terms defined in the handbook. Since current caselaw addresses the bailiff's communications to a jury, the committee felt that it was not necessary to implement a rule. Mr. Peterson MOVED to reject proposed Rule 6.7, NDROC. Mr. Heinley seconded the motion. Motion CARRIED.

In his letter to the committee, Judge Leclerc asked the committee to consider amending Rule 47(b), NDRCivP, to reduce the number of peremptory challenges allowed in civil cases due to the fact that there are no longer 12-person juries in civil cases. The committee discussed the federal rules concerning peremptories in civil cases. The committee did not feel the number of peremptories should be reduced simply because the jury size is now smaller. Mr. Peterson MOVED to reject proposed Rule 47(b), NDRCivP. Mr. Kautzmann seconded the motion. Motion CARRIED.


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Mr. Peterson MOVED that staff counsel draft a proposed amendment to Rule 47(c), NDRCivP, that provides for uniform jury selection and use of peremptories. Mr. Kautzmann seconded the motion. Motion CARRIED. Judge Burdick indicated that perhaps the National Center for State Courts could render assistance in this project.

AMENDMENTS TO TRACK FEDERAL RULES OF APPELLATE PROCEDURE AMENDMENTS

RULE 3(d), NDRAppP

Judge Burdick suggested several style changes to proposed Rule 3(d), NDRAppP, and they are as follows:

Page 83, line 2: overstrike the word "serve" and insert immediately thereafter the words "mail a copy of the" and overstrike the words "of the" at the end of the line

Page 83, line 3: overstrike the words "filing of the notice" and overstrike the words "by mailing a copy"

Page 83, line 4: overstrike the word "thereof"

Page 83, line 7: after the word "the" insert the word "party's", delete the words "of that" and after the word "address" insert a "."

Page 83, line 8: delete the word "party."

Page 83, line 11: overstrike the words "If an appeal is taken by a defendant in"

Page 83: overstrike line 12

Page 83, line 13: overstrike the words "the notice of appeal upon", delete the words "the defendant", and overstrike the words ", either by"

Page 83, line 14: overstrike the words "personal service or by mail addressed to" and delete the word "the"

Page 83, line 15: delete the word "defendant."


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Page 83, line 17: overstrike the word "serve" and insert immediately thereafter the words "cause service of the"

Judge Burdick MOVED to approve proposed Rule 3(d), NDRAppP, as amended. Mr. McLean seconded the motion. Motion CARRIED.

Proposed Rule 3(d), NDRAppP

RULE 3. APPEAL AS OF RIGHT--HOW TAKEN

(d) Service of the Notice of Appeal. The clerk of the trial court shall serve mail a copy of the 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's party at his last known address.

In criminal cases, habeas corpus proceedings, or post-conviction proceedings, the clerk shall also 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 also serve a copy of the notice of appeal upon, either by personal service or by mail addressed to. The clerk shall note on each copy served the date on which the notice of appeal was filed. Failure of the clerk to serve cause service of thenotice does not affect the validity of the appeal. Service is sufficient notwithstanding the death of a party or his the party's counsel. The clerk shall note in the docket the names of the parties to whom hethe clerk mails copies, with the date of mailing.

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

Rule 8(b), NDRAppP

Judge Burdick recommended the following style changes to proposed Rule 8(b), NDRAppP:

Page 84, line 14: overstrike the word "such" and insert immediately thereafter the word "the"

Page 84, line 15: overstrike the word "as"

Judge Burdick MOVED to approve proposed Rule 8(b), NDRAppP, as amended. Professor Kraft seconded the motion. Motion CARRIED.


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Proposed Rule 8(b), NDRAppP

RULE 8. STAY OR INJUNCTION PENDING APPEAL

(b) Stay May Be Conditioned Upon Giving of Bond; Proceedings Against Sureties. Relief available in the supreme court under this rule may be conditioned upon the filing of a bond or other appropriate security in the trial court. If security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits himself to the jurisdiction of the trial court and irrevocably appoints the clerk of the trial court as his the surety's agent upon whom any papers affecting his the surety'sliability on the bond or undertaking may be served. His A surety'sliability may be enforced on motion in the trial court without the necessity of an independent action. The motion and such the notice of the motion as the trial court prescribes may be served on the clerk of the trial court, who shall forthwith mail copies to the sureties if their addresses are known.

RULE 12(a), NDRAppP

Judge Burdick MOVED to approve proposed Rule 12(a), NDRAppP. Mr. Kautzmann seconded the motion. Motion CARRIED.

RULE 25(a)(b), NDRAppP

Judge Burdick recommended the following style changes to proposed Rule 25(a), NDRAppP:

Page 86, line 2: overstrike the word "shall" and insert immediately thereafter the word "must"

Page 86, line 12: after the word "occurs" insert a ","

Page 86, line 13: overstrike the word "shall"

Mr. Peterson MOVED to approve. proposed Rule 25(a)(b),

NDRAppP, as amended. Judge Burdick seconded the motion. Motion CARRIED.


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Proposed Rule 25(a), NDRAppP

RULE 25. FILING AND SERVICE

(a) Filing. Papers required or permitted to be filed in the supreme court shall must be filed with the clerk. Filing may be accomplished by mail addressed to the clerk, but filing is not timely unless the papers are received by the clerk within the time fixed for filing. However, briefs, appendices, and transcripts are deemed filed on the day of mailing if the most expeditious form of delivery by mail, excepting special delivery, is utilized. If a motion requests relief which may be granted by a single justice, the justice may permit the motion to be filed with him the justice. If this occurs, he the justiceshall note thereon the date of filing and shall thereafter transmit it to the clerk.

RULE 26(c),NDRAppP

Judge Burdick recommended the following style change to proposed Rule 26(c), NDRAppP:

Page 87, line 2: overstrike the word "If" and insert immediately thereafter the word "Whenever"

Mr. Peterson MOVED to approve proposed Rule 26(c), NDRAppP, as amended. Mr. McLean seconded the motion. Motion CARRIED.

Proposed Rule 26(c), NDRAppP

RULE 26. COMPUTATION AND EXTENSION OF TIME

(c) Additional Time After Service by Mail. If Whenever a party is required or permitted to do an act within a prescribed period after service of a paper upon him that party and the paper is served by mail, 3 days must be added to the prescribed period.

RULE 28(c), NDRAppP

Judge Burdick recommended the following style changes to proposed Rule 28(c), NDRAppP:

Page 88, line 6: delete the word "shall" and insert in lieu thereof the word "must"

Page 88, line 8: after the word "statutes" insert a "."


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Page 88, line 10: delete the word "where" and insert in lieu thereof the words "in which"

Mr. Peterson MOVED to approve proposed Rule 28(c), NDRAppP, as amended. Mr. Kautzmann seconded the motion. Motion CARRIED.

Proposed Rule 28(c), NDRAppP

RULE 28. BRIEFS

(c) Reply Brief. The appellant may file a brief in reply to the brief of the appellee. The reply brief must be confined to new matter raised in the brief of the appellee. Except as provided in subdivision (h), no further briefs may be filed without leave of the court. All reply briefs must contain a table of contents, with page references, and a table of cases (alphabetically arranged), statutes, and other authorities cited, with references to the pages of the reply brief in which they are cited.

RULE 30(a)(b)(c), NDRAppP

Judge Burdick suggested that proposed Rule 30(a) be amended as follows:

Page 89, line 18: delete the words "Except where" and insert in lieu thereof the word "Unless"

Page 89, line 19: delete the words "memoranda of law" and insert in lieu thereof the words "briefs of the parties"

Judge Burdick MOVED to approve the new language as amended. Mr. McLean seconded the motion. Motion CARRIED.

Judge Burdick recommended the following style changes to proposed Rule 30(b):

Page 90, line 44: after the word "appellee" insert the words ", within 10 days after receipt of the designation,"

Page 90 line 45: overstrike the words ", within 10 days after receipt of the"

Page 90, line 46: overstrike the word "designation,"


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Page 90, line 47: after the word "appellee" insert the words ", within that period,"

Page 90, line 48: overstrike the words ", within that period,"

Judge Burdick MOVED to adopt the style changes. Mr. Lamb seconded the motion. Motion CARRIED,

Mr. Peterson MOVED to delete the new language contained on page 91, lines 68-72 of proposed Rule 30(b). Mr. Lamb seconded the motion. Motion CARRIED.

Professor Kraft pointed out that Rule 47.1, NDRAppP, should be studied and indicated that the rule should track the appellate rules concerning the appendix and the briefs. To reconcile Rule 47.1, NDRAppP, with the other appellate rules will require a study to be conducted by the committee.

Judge Burdick recommended the following style changes to proposed Rule 30(c), NDRAppP:

Page 92, line 93: after the word "Or" insert a ","

Page 92, line 99: after the word "filed" insert a ","

Mr. Kautzmann MOVED to approve proposed Rule 30(a)(b)(c), NDRAppP, as amended. Mr. Peterson seconded the motion. Motion CARRIED. (Prior amendment to Rule 30(a), NDRAppP, is incorporated. See pages 8-10 of Minutes.)

Proposed Rule 30(a)(b)(c), NDRAppP

RULE 30. APPENDIX TO THE BRIEFS

(a) Duty of Appellant To Prepare and File; Contents of Appendix; Time for Filing; Numbers of Copies. The appellant shall prepare and file a separately bound appendix to the briefs which must contain: a table of contents, with page references, and only the following relevant portions of the lower court record:

1. a table of contents, with page references; the docket sheet of the lower court;

2. the relevant docket entries in the proceeding below; the indictment, information, or complaint, as amended;

3. any relevant portions of the pleadings, charge, findings, or opinion; the answer, counterclaim, cross claim, and replies;


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4. the judgment, order, or decision in question; and parts of any pre-trial order relevant to the issues on appeal;

5. any other parts of the record, including portions of the transcript, to which the parties wish to direct the particular attention of the court. any supporting memorandum of decision, findings of fact and conclusions of law filed or delivered orally by the court;

6. the judgment, order, or decision in question;

7. any other orders to be reviewed;

8. the instruction in question, if the correctness of a jury instruction is in issue, and any other relevant part of the jury charge;

9. any other parts of the record, including portions of the transcript, to which the particular attention of the court is invited.

Unless they have independent relevance, briefs of the parties in the trial court should not be included in the appendix.

The fact that parts of the record are not included in the appendix does not prevent preclude the parties or the court from relying on those parts.

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

(b) Determination of Contents of Appendix; Cost of Producing. The parties are encouraged to agree as to the contents of the appendix. In the absence of written agreement, the appellant shall serve on the appellee a designation of the parts of the record he the appellantintends to include in the appendix and a statement of the issues hethe appellant intends to present for review. The designation must be served not later than 10 days after the transcript is filed, but if a transcript is not required, then not later than 10 days after the record is filed. 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 the appellee, within 10 days after receipt of the designation, shall serve upon the appellant, within 10 days after receipt of the designation, a designation of those parts. If a cross-appeal is filed, the appellee, within that period, shall serve upon the appellant, within that period, a statement of the issues he the appellee intends to present in the cross-appeal. The appellant shall include in the appendix the parts thus designated. In designating parts of the record for inclusion in the appendix, the


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parties shall have regard for the fact that the entire record is always available to the court for reference and examination and must not engage in unnecessary designation.

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

(c) Alternative Method of Designating Contents of the Appendix; How References to the Record May Be Made in the Briefs When Alternative Method is Used. If the court so provides by rule for classes of cases or by order in specific cases, preparation of the appendix may be deferred until after the briefs have been filed, and the appendix may be filed 21 days after service of the brief of the appellee. If the preparation and filing of the appendix is thus deferred, the provisions of subdivision (b) apply, but the designations referred to therein must be made by each party at the time his each brief is served, and a statement of the issues presented is unnecessary.

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


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RULE 31 (a)(c), NDRAppP

Judge Burdick recommended the following style changes to proposed Rule 31(a), NDRAppP:

Page 93, line 4: overstrike the "," after the word "filed" and after the word "but" insert a ","

Page 93, line 9: overstrike the word ", but," and after the word "appellee" insert a "."

Page 93, line 10: overstrike the word "except" and insert immediately thereafter the word "Except"

Page 93, line 12: overstrike the word "shall" and insert immediately thereafter the word "must"

Judge Burdick MOVED to approve proposed Rule 31(a)(c), NDRAppP, as amended. Mr. Heinley seconded the motion. Motion CARRIED. (Prior amendment to Rule 31(a), NDRAppP, is incorporated. See page 2 of Minutes.)

Proposed Rule 31(a), NDRAppP

RULE 31. FILING AND SERVICE OF BRIEFS

(a) Time for Serving and Filing Briefs; Where Filed. The appellant shall serve and file his appellant's brief within 40 days after the date on which the transcript is filed, but, if no transcript is ordered, within 40 days after the notice of appeal is filed. The appellee shall serve and file his appellee's brief 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, exceptExcept for good cause shown, a reply brief must be filed at least 3 days before argument. All briefs shall must be filed with the clerk of the supreme court.

RULE 34(e), NDRAppP

Judge Burdick suggested the following style changes to proposed Rule 34(e), NDRAppP:

Page 94, line 6: overstrike the words "neither party appears" and insert immediately thereafter the words "the parties to the appeal fail to appear"


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Page 94, line 7: overstrike the word "shall" and insert immediately thereafter the word "orders"

Page 94, line 8: overstrike the word "order"

Professor Kraft MOVED to approve proposed Rule 34(e), NDRAppP, as amended. Mr. Boyum seconded the motion. Motion CARRIED.

Proposed Rule 34(e), NDRAppP

RULE 34. ORAL ARGUMENT

(e) Non-Appearance of Parties. If the appellee fails to appear to present argument, the court will hear argument on behalf of the appellant, if present. If the appellant fails to appear, the court may hear argument on behalf of the appellee, if his counsel is present. If neither party appears the parties to the appeal fail to appear, the case will be decided on the briefs unless the court shall orders otherwise order.

RULE 43(a)(c), NDRAppP

Judge Burdick suggested the following style changes to proposed Rule 43(a)(c), NDRAppP:

Page 95, line 7: overstrike the word "shall" and insert immediately thereafter the word "must"

Page 95, line 11: overstrike the word "shall" and insert immediately thereafter the word "must"

Page 95, line 18: overstrike the word "shall"

Page 95, line 19: overstrike the word "die" and insert immediately thereafter the word "dies"

Page 96, line 28: overstrike the word "When" and insert immediately thereafter the word "If"

Page 96, line 34: overstrike the word "shall" and insert immediately thereafter the word "must"

Page 96, line 36: overstrike the word "shall" and insert immediately thereafter the word "must"


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Page 96, line 38: overstrike the word "shall" and insert immediately thereafter the word "does"

Page 96, line 39: overstrike the word "When" and insert immediately thereafter the word "If"

Mr. Boyum MOVED to approve proposed Rule 43(a)(c), NDRAppP, as amended. Mr. Lamb seconded the motion. Motion CARRIED.

Proposed Rule 43(a)(c), NDRAppP

RULE 43. SUBSTITUTION OF PARTIES

(a) Death of a Party. If a party dies after a notice of appeal is filed or while a proceeding is otherwise pending in the supreme court, the personal representative of the deceased party may be substituted as a party on motion filed by the representative or by any party with the clerk of the supreme court. The motion of a party shall must be served upon the personal representative in accordance with the provisions of Rule 25. If the deceased party has no personal representative, any party may suggest the death on the record and proceedings shall must then be had as the supreme court may direct. If a party against whom an appeal may be taken dies after entry of a judgment or order in the trial court but before a notice of appeal is filed, an appellant may proceed as if death had not occurred. After the notice of appeal is filed, substitution shall be effected in the supreme court in accordance with this subdivision. If a party entitled to appeal shall die dies before filing a notice of appeal, the notice of appeal may be filed by his that party's personal representative, or, if he has there is no personal representative, by his that party's attorney of record within the time prescribed by these rules. After the notice of appeal is filed substitution shall be effected in the supreme court in accordance with this subdivision.

(c) Public Officers; Death or Separation From Office. When If a public officer is a party to an appeal or other proceeding in the supreme court in his an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his the public officer's successor is automatically substituted as a party. Proceedings following the substitution shallmust be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall must be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order


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shall does not affect the substitution. When If a public officer is a party to an appeal or other proceeding in his an official capacity hethat public officer may be described as a party by his the public officer's official title rather than by name; but the supreme court may require his the public officer's name to be added.

RULE 45(a)(b)(d), NDRAppP

Judge Burdick suggested the following style changes to proposed Rule 45(a)(b)(d), NDRAppP, which the committee approved:

Page 97, line 5: delete the word "continuing"

Page 97, line 6: overstrike the words "shall be" and insert immediately thereafter the word "is"

Page 97, line 10: overstrike the word "shall" and insert immediately thereafter the word "must"

Page 97, line 16: overstrike the second word "shall" and insert immediately thereafter the word "must"

Page 97, line 18: overstrike the word "shall" and insert immediately thereafter the word "must"

Page 97, line 20: overstrike the word "shall" and insert immediately thereafter the word "must"

Page 97, line 22: overstrike the first word "shall" and insert immediately thereafter the word "must" and overstrike the words "but shall" and insert immediately thereafter the word "and"

Page 97, line 24: overstrike the word "shall" and insert immediately thereafter the word "must"

Page 98, line 41: overstrike the word "shall" and insert immediately thereafter the word "must"

Page 98, line 42: overstrike the words "upon disposition of the case" and after the word


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"returned" insert the words "upon disposition of the case"

Mr. Kautzmann indicated that habeas corpus proceedings should receive preference before anything else when placing cases on the calendar. Mr. Kautzmann MOVED that on page 98, line 30 after the word "preference" insert the words "to habeas corpus proceedings,". Mr. Peterson seconded the motion. Motion CARRIED.

Judge Burdick MOVED to approve proposed Rule 45(a)(b)(d), NDRAppP, as amended. Mr. Kautzmann seconded the motion. Motion CARRIED.

Proposed Rule 45(a)(b)(d), NDRAppP

RULE 45. DUTIES OF CLERK

(a) General Provisions. The clerk of the supreme court shall take the oath and give the bond required by law. Neither the clerk nor any deputy clerk shall practice as an attorney or as counselor in any court while he continues in office. The supreme court shall be is deemed always open for the purpose of filing any proper paper, of issuing and returning process, and of making motions and orders. The office of the clerk, with the clerk or a deputy in attendance, shall must be open during business hours on all days except Saturdays, Sundays, and legal holidays. The clerk is under no obligation to give notice to the parties of time deadlines.

(b)The Docket; Calendar; Other Records Required. The clerk shall keep a book known as the docket, and shall enter therein each case. Cases shall must be assigned consecutive file numbers. The file number of each case shall must be noted on the folio of the docket whereon the first entry is made. All papers filed with the clerk and all process, orders, and judgments shall must be entered chronologically in the docket on the folio assigned to the case. Entries shall must be brief but shall and show the nature of each paper filed or judgment or order entered. The entry of an order or judgment shall must show the date the entry is made. The clerk shall keep a suitable index of cases contained in the docket.

The clerk shall prepare, under the direction of the supreme court, a calendar of cases awaiting argument. In placing cases on the calendar for argument, he the clerk shall give preference to habeas corpus proceedings, to appeals in criminal cases and to appeals and other proceedings entitled to preference by law.


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The clerk shall keep such other books and records as may be required by the supreme court.

(d) Custody of Records and Papers. The clerk shall have custody of the records and papers of the court. He The clerk shall not permit any original record or paper to be taken from his the clerk's custody except as authorized by the orders or instructions of the supreme court. Original papers transmitted as the record on appeal or review shall must upon disposition of the case be returned upon disposition of the case to the court or agency from which they were received. The clerk shall preserve copies of briefs and appendices and other papers filed.

RECESS

The meeting was recessed until 9:00 a.m., September 19, 1986.

CALL TO ORDER

The meeting was called to order at 9:00 a.m., September 19, 1986, by Justice H. F. "Sparky" Gierke, Chairman.

ATTENDANCE

The roll call remained the same as in the afternoon session of September 18, 1986, except that Cathy Howe Schmitz was present.

RULE 8.4, NDROC; §§ 14-05-24.1 and 14-06-03.1, N.D.C.C.

Staff counsel highlighted the Hill v. Hill divorce case which was recently decided by the North Dakota Supreme Court. In that case, Justice Levine suggested in her concurring opinion that a rule of court, that applies to all courts of this state, prescribing a mandatory waiting period following the execution of a voluntary property settlement agreement, is a subject meriting serious consideration by the Joint Procedure Committee. The committee discussed the various drafts to proposed Rule 8.4, NDROC, and also the proposed legislation concerning property settlement agreements. The committee did not agree with having a 30-day waiting period.

Judge Burdick MOVED that staff develop a rule whereby if a divorce hearing involves the approval of a property settlement agreement, that the parties must wait three days after execution of the agreement before appearing in court unless both parties appear before the court so that the parties may be questioned as to


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whether they voluntarily entered into that agreement. Professor Kraft seconded the motion. Motion CARRIED.

EXPLANATORY NOTES TO RULES APPROVED AT THE JANUARY 1986 MEETING

RULE 67, NDRCivP

Judge Burdick MOVED to approve the explanatory note to Rule 67, NDRCivP. Professor Kraft seconded the motion. Motion CARRIED.

RULE 40, NDRCivP

Mr. Loder MOVED to approve the explanatory note to Rule 40, NDRCivP. Mr. Lamb seconded the motion. Motion CARRIED.

RULE 12.2, NDRCrimP

Judge Burdick MOVED to approve the explanatory note to Rule 12.2, NDRCrimP. Professor Kraft seconded the motion. Motion CARRIED.

RULE 12.1, NDRCrimP

Judge Burdick MOVED to approve the explanatory note to Rule 12.1, NDRCrimP. Mr. Lamb seconded the motion. Professor Kraft suggested that the language on page 130, lines 6-7 be amended to read as follows: "to conform to the language style of the 1985 amendment to Rule 12.1, FRCrimP." Judge Burdick agreed to incorporate the amendment in his motion with the approval of Mr. Lamb. Motion CARRIED.

Rule 12.1, NDRCrimP

Explanatory Note

* * * * *

This rule was amended, effective ____________________, to conform to the language style of the 1985 amendment to Rule 12.1, FRCrimP.

* * * * *

RULE 11, NDRCrimP

Judge Berning sent a letter to the Joint Procedure Committee requesting that it consider amending Rule 11 in order to allow the court to participate in a limited manner in plea negotiations with the parties at some point prior to formal


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proceedings. Judge Berning was not present to further discuss his request. However, Mr. Loder of Minot indicated that Judge Berning did not wish the committee to pursue this matter. Judge Burdick MOVED to table Judge Berning's request to amend Rule 11, NDRCrimP. Mr. Lamb seconded the motion. Motion CARRIED.

RULE 6.1, NDROC

Judge Berning sent a letter to the Joint Procedure Committee requesting that they consider an appropriate amendment to Rule 6.1(a), NDROC, to provide a limitation as to the number of continuances that may be granted or by allowing the court to require the attorney involved to implement representation of the client by partners or other associates. Mr. Loder indicated that the continuance problem arises most often in DWI cases and it causes calendaring problems for the court. This why Judge Berning wishes to limit the use of Rule 6. 1, NDROC. Mr. Peterson indicated that he did not believe that the rule should be changed to try to correct one problem and compromise a client's position in order to help the court calendar its cases. Mr. Loder indicated that other partners can cover for an attorney in the firm and that often times attorneys take on too many cases. Mr. Peterson MOVED to not adopt any revision to Rule 6.1, NDROC. Mr. Kautzmann seconded the motion. Judge Burdick MOVED to table this issue. Judge Burdick then withdrew his motion and Mr. Peterson and Mr. Kautzmann agreed to change their motion and second to tabling the issue of amending Rule 6.1, NDROC, to limit the number of continuances.

CHAPTER 54-40.2, NDCC

Ms. Judith Atkinson wrote to the Chief Justice concerning the interaction of tribal and state courts and the jurisdiction of each in regards to various subjects. Chapter 54-40.2, NDCC, provides for the counties of the state and various tribes to work out agreements on administrative service activity and to resolve disputes. She indicated in her letter that under 25 U.S.C. 1911 the courts of this state are required to recognize the acts of the tribal court in regard to child custody proceedings. However, she found out that the court system had no procedure regarding the recording of tribal court acts. Mr. Kautzmann indicated that we will continue to have these kinds of problems until the tribes submit to state jurisdiction. Professor Kraft suggested that we contact Ms. Atkinson and request her to submit a proposed rule for the committee to review. Mr. Lamb MOVED to refer this matter to Ms. Atkinson and to staff counsel with the request that a proposed rule be


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drafted to address the problem if appropriate. Schmitz seconded the motion. Motion CARRIED.

FORM FOR WAIVER OF DOCKET FEE

In Document 1 of the Handout, the Joint Procedure Committee was requested by the Supreme Court to study and develop an appropriate state form to be used by an indigent requesting waiver of the filing fee in a civil appeal. The committee reviewed the form as drafted by staff counsel. Mr. Kautzmann MOVED that the form be sent to the Supreme Court for review and adoption as an administrative rule. Mr. Peterson seconded the motion. Motion CARRIED.

RULE 54, NDRCivP

Mr. Leonard Bucklin sent a letter to the committee indicating that there is a problem with the taxation of expert witness fees. (Handout Document 2) Rule 54(e), NDRCivP, provides that costs and disbursements are to be allowed as provided by statute. However, Section 28-26-06, NDCC, provides that the fees of expert witnesses shall be "as determined by the court." It appears that there are no two judges in the state that handle the matter in the same way. Mr. Peterson MOVED that staff counsel review this issue and draft an amendment to Rule 54, NDRCivP. Professor Kraft seconded the motion. Motion CARRIED.

CERTIFICATE OF READINESS

Mr. Robert Vogel sent a letter to the committee concerning a problem that relates to certificates of readiness. The committee reviewed his letter and discussed the concerns that were expressed. (Handout Document 3) The committee decided to take no action.

RULE 3.2, NDROC

Mr. Peterson indicated that there appears to be a loophole in Rule 3.2, NDROC, in that if a party asks for oral testimony, that party sometimes does not file a brief until the day of the hearing rather than 3 days before the date of any hearing as provided for under subdivision (a). Judge Burdick suggested that subdivision (c) be amended as follows: Upon the filing of briefs, or upon expiration of the time for filing, the motion is deemed submitted, heard and taken under advisement by the court, unless counsel for any party who has timely served and filed a brief requests the taking of testimony or oral argument on the motion.


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The committee requested staff counsel to place this issue on the agenda for the next meeting.

ADJOURNMENT

The meeting was adjourned at 11:30 a.m. The next meeting will be tentatively held in January 1987.

__________________________
Secretary