Joint Procedure Committee Meeting
Scheduled on Thursday, September 23, 1993 @ 10:00 AM
MINUTES OF MEETING
Joint Procedure Committee
September 23-24, 1993
CALL TO ORDER
The meeting was called to order at approximately 9:00 a.m., September 23,1993, by Justice Beryl Levine, Chairperson.
Justice Beryl Levine
Honorable Wallace Berning
Honorable Bruce Bohlman (09/23/93 only)
Honorable Gerald Glaser
Honorable Gail Hagerty
Honorable Lawrence Leclerc
Honorable James O'Keefe
Honorable James Wright
Professor Larry Kraft
Ms. Patricia Ellingson
Mr. John Kapsner
Mr. Dwight Kautzmann
Mr. James Lamb
Mr. Ronald McLean
Mr. James Odegard (9/24/93 only)
Mr. David Peterson (9/23/93 a.m., only)
Honorable Ronald Hilden
Honorable Kirk Smith
Mr. Robert Heinley
Ms. Cathy Howe Schmitz
Mr. Gerhard Raedeke
The schedule of the Joint Procedure Committee was announced as follows: January 27-28, 1994 and April 28-29, 1994.
Committee membership was reviewed. on December 31, 1993, the memberships of the following people will expire: Mr. Lamb, Mr. McLean, Mr. Odegard, and Ms. Schmitz.
APPROVAL OF MINUTES
Mr. Lamb MOVED that the minutes of the Joint Procedure Committee meeting of April 29-30, 1993, be approved as submitted. Mr. Kapsner seconded. Motion CARRIED.
PROPOSED AMENDMENTS IN RESPONSE TO COUNTY COURT ELIMINATION
The North Dakota county courts will be eliminated effective January 1, 1995. The Committee considered amendments to the Rules of Criminal Procedure and the North Dakota Supreme Court Administrative Rules in response to county court elimination.
USAGE OF THE WORD "MAGISTRATE" IN THE RULES OF CRIMINAL PROCEDURE (PAGES 13-17 OF THE AGENDA MATERIAL)
The Committee considered the usage of the word "magistrate" in the Rules of Criminal Procedure. Concern was expressed that the word "magistrate" is confusing, because it is not readily apparent to the reader of the rules who is a magistrate. Without referring to the pertinent statutes, one may not realize that judges are magistrates. Committee members expressed a desire that the Rules of Criminal Procedure be clear and self-contained, so that the reader does not have to look up definitions in the Century Code.
The Committee considered adding the word "judge" whenever the word magistrate is used in the Rules of Criminal Procedure. The Committee also considered the terminology used in Minnesota's rules. Minnesota uses the two phrases following: "judge or judicial officer" or "judge, judicial officer, or other duly authorized personnel."
Mr. Peterson MOVED that the phrase "judge or other magistrate" be substituted for the word "magistrate" in the rules of Criminal Procedure. Mr. McLean seconded. Other Committee members suggested that substituting the phrase "judge or other magistrate" makes the rules unclear, because a judge can only act with the powers of a magistrate when acting as a magistrate. Motion FAILED.
APPOINTMENT OF MAGISTRATES AFTER COUNTY COURT ELIMINATION (PAGES 18-25 OF THE AGENDA MATERIAL)
Staff explained that currently, under Section 27-07.1-07, N.D.C.C., county judges appoint magistrates. Newly enacted legislation repeals that statute. The new statute, Section 27-05-31, N.D.C.C., provides that the presiding judge of a judicial district may appoint any qualified person to act as a magistrate including the clerk of the district court.
The Committee reviewed the proposed amendment to A.R. 20 on page 19, which eliminates references to county judges and provides that the presiding judge of a judicial district may appoint the magistrate.
Committee members expressed concern about clerks of court being appointed as magistrates. Section 5 of A.R. 20 concerns the scope of delegable duties. Committee members thought that the duties outlined in subdivisions 1, 2, 3, 4, and 6 of Section 5 should not be conducted by someone who is not law trained. Committee members suggested that Section 5 be broken into 2 subsections. The first subsection would cover duties that are only delegable to a magistrate who is law trained, while the second subsection would cover duties that are delegable to any magistrate.
The Committee noted that Section 27-05-31, N.D.C.C., provides that the Supreme Court may adopt rules for the qualifications of magistrates and the extent and assignment of their authority. The Committee questioned whether the delegable duties under Section 5 are still authorized pursuant to the statutes cited in A.R. 20.
Committee members commented that the power of magistrates is a political subject which is outside the mandate of the Joint Procedure Committee. Does the Rule on Procedural Rules of the North Dakota Supreme Court give the Joint Procedure Committee responsibility for the North Dakota Supreme Court Administrative Rules? Committee members suggested that the administrative rules are the responsibility of the Court Services Committee.
Mr. Kapsner MOVED that Section 5 of A.R. 20 be broken into 2 subsections. The first subsection would contain the duties that are delegable to law trained magistrates, while the second subsection would contain duties that are delegable to any magistrate. Mr. McLean seconded. Motion CARRIED.
Because of uncertainty as to whether A.R. 20 is within the Joint Procedure Committee's mandate, the Committee instructed staff to discuss the Committee's concerns with Jim Ganje, the staff attorney for the Court Services Administration Committee. Staff was also instructed to review the statutes giving the magistrate the authority to perform the functions listed in Section 5 of A.R. 20.
PRELIMINARY EXAMINATIONS AFTER COUNTY COURT ELIMINATION (PAGES 26-59 OF THE AGENDA MATERIAL)
The Committee considered whether the preliminary examination should be retained after county court elimination. As an alternative, the Committee also considered whether the determination of probable cause should be at the omnibus
hearing, rather than requiring a separate hearing for the preliminary examination.
Some Committee members argued that the preliminary examination should be retained. In North Dakota grand jury proceedings are not used as in the federal system. Furthermore, the preliminary examination provides the indigent defendant with a means of obtaining discovery without incurring excessive costs.
Other Committee members argued that the preliminary examination should be abolished. The preliminary examination causes delay. Furthermore, discovery is now allowed under Rule 16, N.D.R.Crim.P., and exculpatory evidence is required to be disclosed. Also, the preliminary examination often does not amount to anything worthwhile because an affidavit is simply filed. The discussion of the Committee indicated that it varies from district to district as to how often preliminary examinations are waived.
Committee members argued that the preliminary examination saves judicial resources. If there is a dismissal, the time required for a jury trial is saved. For instance, when issuing a warrant, the magistrate may not realize that the hearsay is not credible or reliable. More information is available at the preliminary examination for considering the credibility and reliability of the hearsay upon which the probable cause determination is based. Also, the probable cause determination at the preliminary examination is different than the probable cause determination for an arrest warrant. When finding probable cause for an arrest warrant, the magistrate is only hearing from one side.
Committee members argued that the finding of probable cause is seldom overturned at the preliminary examination. In any event, if there is not probable cause, the case will probably not end up at trial anyway. Such cases reject themselves from the system. Other Committee members noted that public outcry might cause a prosecutor to bring a bad case to trial.
Committee members argued that the preliminary examination has useful purposes and should not be eliminated just because of time problems in the system. It was suggested that a time deadline could be imposed to require the preliminary examination in a certain number of days after the initial appearance. Mr. Peterson MOVED to retain the preliminary examination. Judge Leclerc seconded. Motion CARRIED.
PROBABLE CAUSE DETERMINATIONS IN WARRANTLESS ARREST CASES
The Committee discussed the probable cause requirements of Gerstein v. Pugh, 420 U.S. 103 (1975) and County of Riverside
v. McLaughlin, 500 U.S 1 (1991). Gerstein held that a probable cause determination must be made promptly. County of Riversidedefines "promptly."
Rule 5, N.D.R.Crim.P., provides that a complaint must be filed. The Committee discussed whether Rule 5, N.D.R.Crim.P., should be amended to clarify that a probable cause determination must be made. When reading Rule 5, it may not be apparent that a probable cause determination is required in warrantless arrest cases.
Professor Kraft MOVED to add language such as is found in Rule 5, Fed.R.Crim.P., regarding probable cause. Judge Wright seconded. Motion CARRIED. Staff was instructed to rewrite Rule 5, for the next meeting. The amendment is to clarify that there must be a prompt determination of probable cause in warrantless arrest cases.
WAIVER OF PRELIMINARY EXAMINATION; AND PLEAS AT THE INITIAL APPEARANCE (PAGES 60-70 OF THE AGENDA MATERIAL)
The Committee considered whether pleas should be allowed at the initial appearance in felony cases, and whether the preliminary examination should be allowed to be waived at the initial appearance.
Committee members argued that the accused needs time to consult with counsel before being called upon to plead or waive the preliminary examination. Other Committee members argued that it is not fair to the defendant to require the defendant to consult with an attorney if the defendant wants to plead.
The Committee reviewed language in Rule 5, Fed.R.Crim.P.,which provides:
"The magistrate shall allow the defendant reasonable time and opportunity to consult counsel and shall detain or conditionally release the defendant as provided by statute or in these rules."
Committee members noted that judges normally do not allow a defendant to waive the preliminary examination without consulting counsel or making sure that the wavier is knowing and voluntary.
Other Committee members argued that guilty pleas should not be accepted at the initial appearance if the accused has not consulted with an attorney to prevent problems on appeal. A paper trail is created by requiring the accused to consult with an attorney before accepting a plea at the initial appearance. Prohibiting guilty pleas at the initial appearance without the advice of counsel will prevent subsequent motions to withdraw pleas. The door will be closed more tightly.
In any event, at a subsequent hearing, the accused can plead without having to consult counsel. By requiring the accused to consult with counsel before accepting a plea at the initial appearance, in effect what is happening is that a time out is being called if the accused has not consulted counsel. Committee members argued that pro se defendants need to be protected by providing them with counsel because a lawyer would be able to provide beneficial assistance in many cases.
Judge Hagerty suggested that the proposed amendment on page 69 provide as follows:
"If the offense charged is a felony, the defendant has a right to a preliminary examination. The defendant may not be called upon to waive the preliminary examination or plead at the initial appearance in the absence of counsel."
Mr. Kapsner MOVED to adopt the language suggested by Judge Hagerty. Mr. Kautzmann seconded. Motion CARRIED. The motion was to amend the language in Alternative 3 on page 68. The motion was not to choose Alternative 3 over Alternative 1 on page 62.
Committee members continued to argue that defendants should not be told that they have to consult with an attorney, when the accused wants to plead without consulting an attorney. Prohibiting the acceptance of a plea at the initial appearance if the defendant has not consulted with counsel creates an unwaivable right to counsel. A proper exercise of judicial discretion can be relied upon as to whether to accept a plea when a defendant is unrepresented by counsel.
Other Committee members commented that the amendment would not prohibit defendants from waiving the right to counsel. The amendment would simply prevent them from pleading at the initial appearance without consulting counsel. Committee members questioned how soon a defendant could plead after the initial appearance if the defendant refused to consult with counsel.
Mr. Peterson MOVED that whatever alternative is adopted, the rule should require that the defendant must be assisted by counsel before the defendant can plead at the initial appearance or waive the preliminary examination. Mr. Kautzmann seconded. Motion CARRIED.
The Committee discussed whether the magistrate needs to be a district court judge in order to accept a felony plea. Other magistrates such as municipal judges or clerks of court may also conduct initial appearances. Committee members noted that only a district judge has authority to sentence a defendant. Alternative 1 on page 62 has language providing that
a magistrate must be a judge of the district court to accept a felony plea.
Even though not in favor of requiring a defendant to consult with counsel before accepting a plea at the initial appearance, Judge Hagerty suggested alternative language for Alternative 1 on page 62 as follows:
"If the offense charged is a felony, the defendant has a right to a preliminary examination. The defendant may waive the right to a preliminary examination at the initial appearance if assisted by counsel. If the defendant does not waive preliminary examination, the defendant shall not be called upon to plead to a felony offense at the initial appearance. If the defendant is assisted by counsel and waives preliminary examination and the magistrate is a judge of the district court, the defendant may be permitted to plead to the offense charged in the complaint at the initial appearance."
Mr. Lamb MOVED to adopt the language suggested by Judge Hagerty. Mr. Kapsner seconded. Motion CARRIED.
Committee members questioned the language on lines 19-21 which provides that the magistrate shall hold the defendant to answer in the district court having jurisdiction to try the case. The Committee noted that this language will be archaic after county court elimination. The defendant will already be in district court. Mr. Lamb MOVED to amend lines 19-21 so that the proposal will provide as follows:
"If the defendant waives preliminary examination and does not plead at the initial appearance, the magistrate shall schedule an arraignment."
Mr. Kapsner seconded. Motion CARRIED.
REVIEW OF ORDER DISCHARGING DEFENDANT AFTER PRELIMINARY EXAMINATION (PAGES 71-74 OF THE AGENDA MATERIAL)
The Committee considered whether a prosecutor should be allowed to obtain review by a different district court judge of a district court order discharging a defendant after a preliminary examination. Currently, after a preliminary examination, if the county court orders that the defendant be discharged, the prosecutor may obtain review in district court of the order discharging the defendant.
The Committee questioned whether a prosecutor would have the right to appeal an order discharging the defendant to the Supreme Court if review by the district court is abolished. The Committee also noted that a procedure for review is available for defendants. Defendants currently petition for a
writ of certiorari by arguing that if the magistrate makes a bind-over without probable cause there is no jurisdiction. The Committee questioned whether defendants would now be able to petition the Supreme Court by writ of certiorari if the preliminary examination is held in district court.
Mr. Peterson MOVED to adopt proposed Rule 5.1 as shown on page 72 to eliminate district court review of an order discharging the defendant. Motion CARRIED.
USAGE OF INFORMATION AND/OR COMPLAINT (PAGES 75-80 OF THE AGENDA MATERIAL)
The Committee considered whether both the complaint and the information are needed once county courts are eliminated. Committee members thought that the use of both the information and the complaint should be continued because the statutes only address the use of the information in felony cases. Also, the constitution requires that felonies be prosecuted by information. N.D. Const. Art. I § 10.
The Committee noted that in State v. Buehler, 125 N.W.2d 155, 159 (N.D. 1963), the court held that a complaint is equivalent to an information. Committee members argued that complaints are not equivalent to an information. There is a substantive difference. The complaint is a sworn statement of a complaining witness, while an information is signed by the prosecution. The Committee decided that felonies should still be prosecuted by an information, because the right to a preliminary examination in felony cases is going to remain.
Committee members said that misdemeanor cases should also be allowed to be prosecuted on an information or indictment, so that misdemeanor charges may be tagged along with the felony charges. Committee members said that is current practice, and should be reflected in the rule.
The Committee considered the proposals on pages 79 and 80. Judge Hagerty MOVED to adopt the proposals as shown on pages 79 and 80. Mr. Kapsner seconded. Motion CARRIED.
On page 79, Committee members were concerned about the language on line 7 which provides that all felony prosecutions in the district court shall be prosecuted by "filing an" indictment or information. Committee members were concerned about someone arguing that a complaint could not be used to initiative a felony prosecution because of the words "filing an." Committee members were also concerned that the language might affect when a prosecution is commenced. The Committee noted that for double jeopardy purposes a prosecution does not start until after the preliminary examination. The Committee was concerned when a prosecution starts for statute of limitation purposes.
The Committee questioned the necessity of using the phrase "district court" in the rules after elimination of county courts. The Committee decided to leave the phrase "district court" in Rule 7 because felonies may only be prosecuted in district court. The Committee suggested that the words "filing an" be eliminated on line 7 and line 10 on page 79. The Committee suggested eliminating the word "prosecuted" on lines 7 and 9 to eliminate a redundancy.
The Committee also suggested adding the words "and other" to line 8 so that the last sentence would provide:
"All misdemeanor and other prosecutions in the district court, including appeals, shall be by indictment, information or complaint."
The Committee noted that violations of city ordinances are not misdemeanors, yet violations of city ordinances are prosecuted in district court when a jury trial is requested.
The Committee again discussed whether both the complaint and the information are needed in felony cases after county court elimination. Some Committee members thought that it was duplicative to use both the complaint and the information when there is no longer a bind-over from county court to district court. The committee noted that Rule 9, N.D.R.Crim.P., provides for a warrant of arrest based on an information supported by a showing of probable cause as required in Rule 4(a). It was suggested that Rule 4(a), N.D.R.Crim.P., be amended to provide as follows:
"If it appears to the magistrate from the complaint or information, and from any affidavit filed with the complaint or information that there is probable cause to believe that a criminal offense has been committed by the defendant, a warrant for the arrest of the defendant upon the complaint shall issue to any officer authorized by law to execute it."
Other Committee members argued that the use of both the complaint and information should continue in felony cases. Some Committee members thought that there was a substantive difference between a complaint and an information. For instance, the information is not sworn to as to the facts. Committee members said that prosecutors will not want to start prosecutions by using an information that they sign.
Committee members noted that this was a change that is not necessary in response to county court elimination. Major changes would have to be made to eliminate the use of the complaint in felony prosecutions. The Committee noted that Section 29-09-02, N.D.C.C., provides for prosecution by information.
Committee members wanted the rules to reflect the current practice by allowing felony and misdemeanor charges to be joined in the same charging document. Judge Hagerty MOVED that the proposed amendment to Rule 12 on page 80 be adopted as proposed. Judge Wright seconded. Motion CARRIED.
APPEALS FROM MUNICIPAL COURT TO COUNTY COURT (PAGE 81-83 OF THE AGENDA MATERIAL)
Staff explained that Administrative Rule 16 and Rule 37, N.D.R.Crim.P., need amending to reflect elimination of county courts. Currently, Rule 16 provides that appeals from municipal court are to be heard in county court. Rule 37 (g) provides for a trial anew when an appeal is taken to district court or county court. The court consolidation legislation provides that appeals from municipal court are to be taken in district court. See Section 40-18-19, N.D.C.C.
Committee members had concern as to whether administrative rules are within the mandate of the Joint Procedure Committee. Staff is to discuss the scope of the committee's mandate with the Supreme Court. The Committee indicated that administrative rules should not be considered for the remainder of the meeting.
Judge Wright MOVED to adopt Rule 37(g) as proposed on page 83. Judge Hagerty seconded. Motion CARRIED.
APPEAL OF TRAFFIC VIOLATION FOR TRIAL ANEW (PAGES 84-92 OF THE AGENDA MATERIAL)
The Committee discussed the right to appeal a finding that a person has committed a traffic violation. The Committee also discussed to which court an aggrieved party may appeal. When traffic offenses occur outside the jurisdictional limits of the municipal courts, the traffic offense will be tried by the district court after elimination of the county courts.
The Committee noted that there is potential for a trial anew in the district court of a non-criminal traffic violation. Committee members commented that there is no rational way to appeal a finding of a district court to the district court when the case has already been tried in district court.
The Committee noted that historically the rationale for allowing an appeal for a trial anew in non-criminal traffic violation cases was that the judge in municipal court might not be law trained. District judges on the Committee indicated that they have been hearing appeals from county court to district court in non-criminal traffic cases.
The Committee was unsure about Section 39-06.1-03(5)(a), N.D.C.C., which seems to indicate that a district judge's findings in a non-criminal traffic case may be appealed to the district court for trial anew. The Committee suggested that Section 39-06.1-03(5)(a), N.D.C.C., should provide as follows:
"If a person is aggrieved by a finding in municipal court that the person committed the violation, the person may, without payment of a filing fee, appeal that finding to the district court for trial anew."
Committee members noted that a question still remains as to the right of appeal. The official presiding over the non-criminal traffic violation case may be someone other than a district judge or municipal judge. Amended Section 39-06.1-03(7), N.D.C.C., provides that "an official" includes a person appointed by a district judge when provided by statute. If the person presiding over a non-criminal traffic case is appointed by the district court judge, the question arises as to whether there is a right to appeal to the district court the finding of that official. The Committee also questioned whether there is a right to appeal to the Supreme Court the findings of district court judges in non-criminal traffic cases.
The Committee suggested that staff prepare a proposal for submission to the Legislative Council. The Committee wants to clarify that there can be no appeal from a district court determination of a non-criminal traffic violation either to the district court or the Supreme Court.
COSTS INCURRED IN BRINGING THE PROBATIONER BEFORE THE COURT (PAGES 93-94 OF THE AGENDA MATERIAL)
The Committee reviewed Rule 32(f)(1), N.D.R.Crim.P. The Committee questioned why the rule contains so many substantive provisions. The Committee was unsure as to who will pay the costs incurred in bringing the probationer before the court after county court elimination. The Committee indicated that requiring costs to be borne by the state is not a procedural matter for the Joint Procedure Committee. The Committee wondered if the rule is tracking a statute. Committee members noted that there is a statute on extradition that provides for the return of a person who violates his or her probation. The Committee instructed staff to determine if the substantive provisions in Rule 32 are already covered by statute.
RULE 1101, N.D.R.Ev. - APPLICABILITY OF RULES (PAGES 95-106 OF THE AGENDA MATERIAL)
The Committee was informed that a proposal to amend Rule 1101, N.D.R.Ev., was submitted to the North Dakota Supreme
Court with the understanding that the proposal would be considered by the Committee at this meeting. The proposed amendment needed to be submitted to the court immediately in order to meet publication deadlines.
The proposed amendment deletes the provision in Rule 1101 making the rules of evidence inapplicable to administrative proceedings. The proposed amendment is in response to the 1991 amendment to Section 28-32-06, N.D.C.C., and Madison v. North Dakota Dept. of Transp., 503 N.W.2d 243 (N.D. 1993).
Mr. Lamb MOVED that the Committee ratify the proposal that was submitted to the Supreme Court. Ms. Ellingson seconded. Motion CARRIED.
PUBLICATION OF LOCAL RULES
Staff questioned the Committee as to why local rules are published by the Michie Company, but not West Publishing Company. Section 12.1, of the North Dakota Rule on Local Court Procedural Rules provides that the local court rules are to be published periodically by the state court administrator. The Committee indicated that the local rules should be published in both West and Michie's publication of the North Dakota Court Rules. Staff will discuss publication of local rules with the court administrator.
MOTION PRACTICE IN THE VARIOUS JUDICIAL DISTRICTS OF NORTH DAKOTA UNDER RULE 3.2, NDROC
The Committee discussed the differences in practice that exist among the various judicial districts in regard to the implementation of Rule 3.2, NDROC. Some Committee members thought there should be uniformity among the various judicial districts. Committee members commented that lawyers ought to be assured that they can rely on Rule 3.2 and published local rules that are not in conflict with Rule 3.2. Some Committee members wanted the differences in practice eliminated to make it easier for attorneys to practice in the various judicial districts.
Other Committee members commented that it is unrealistic to require all districts to perform in the same manner. The internal administrative implementation of Rule 3.2 should be left up to the districts, unless the district's procedure conflicts with Rule 3.2.
Committee discussion revealed that the implementation of Rule 3.2 varies even within the judicial districts. Committee members suggested that all districts or individual judges have their own procedure for implementation of Rule 3.2, but only some districts have put their procedure into writing as a local rule.
PROPOSED AMENDMENT TO RULE 3.2, NDROC - MOTIONS (PAGES 107-123 OF THE AGENDA MATERIAL)
The Committee considered whether Rule 3.2, NDROC, should be amended as proposed on page 119 to incorporate case law notice requirements. Staff explained that the proposed amendment conflicts with practice; because in some districts, the movant cannot get a date for oral argument before filing the motion.
Some Committee members argued that the proposed amendment does not correctly reflect the notice requirements contained in case law. Some attorneys quote the entire Rule 3.2 in their notice of motions in response to case law. Committee members suggested that the notice should at least include a reference to Rule 3.2. Other Committee members argued that the cases only require the notice to advise the responding party that the motion will be decided on briefs unless oral argument is timely requested.
It was suggested that the proposed language be altered to provide as follows:
"The notice shall indicate the time of oral argument, or that the motion will be decided on briefs at that time unless oral argument is timely requested."
The language, "at that time" refers to the time of hearing. In the Northeast Central Judicial District, a time is set for hearing even if the motion is to be decided on briefs. The purpose of requiring that a time be set for hearing is to ensure that the file is pulled at a time certain to prevent the motion from being lost. Other Committee members did not think the internal procedures of individual districts should be accommodated when amending Rule 3.2.
Under the amendment, Committee members noted that notice of the time for oral argument can be included in the notice of motion if the request for oral argument has already been made and the clerk furnishes a time for oral argument.
Committee members commented that requests for oral argument are found in a variety of places, including the briefs. Rule 3.2 does not specify where or how the request for oral argument must be made. Some Committee members suggested that a separate document should be used for requesting oral argument, so that the request would be easier for the clerks to spot and there would be uniformity in practice. Other Committee members questioned the need for a separate document because requests for oral argument are often made over the phone.
Other Committee members commented that the Rule 3.2 is sufficiently clear. The clerk of court is not responsible if a request for oral argument is missed. Rule 3.2 provides that the
party requesting oral argument must secure a time for oral argument and serve notice. The rule is also clear as to when the request for oral argument must be made. The request for oral argument must be made not later than 5 days after the expiration of the time for filing briefs. The consensus of the Committee seemed to be that it does not matter where or how the request for oral argument is made because the party requesting oral argument is responsible for serving notice of the time for oral argument.
TIME COMPUTATIONS FOR WRITTEN MOTIONS (PAGES 124-130 OF THE AGENDA MATERIAL)
The Committee reviewed the time computations for determining the number of days needed between the day a motion is filed and the date the motion may be heard on briefs or argued orally. (See pages 124-125 of the agenda material). Currently the judicial districts are not uniform as to when a judge will consider a motion. Generally, before consideration of a motion, the number of days that must elapse is calculated internally by court administration to ensure that the motion is ripe for the judge's decision.
The Committee considered the proposal on page 126 to amend Rule 6(d), N.D.R.Civ.P. Committee members questioned whether 28 days should be the norm. The Committee noted that Minnesota uses 28 days for dispositive motions in civil cases.
Other Committee members noted that a period shorter than 28 days could be used. Committee members suggested that time is wasted by allowing a moving party 5 days for preparation of a brief. The movant could be required to file a brief and supporting documents with the motion. In any event, the movant can usually get an extension of time if extra time is needed. Other Committee members commented that the 5 day period for the preparation of briefs is intended to prevent the attorney from having to go to the court for an extension of time.
The Committee noted that 28 days is probably the maximum amount of time needed, and in most instances 28 days will not be necessary. Committee members suggested that 21 days be used instead of 28 days. Twenty-one days includes 10 days for briefing, 3 days for mail, 1 day for court review, 5 days for requesting a hearing after submission of briefs and 2 days for an intermediate Saturday and Sunday.
Committee members commented that 28 or 21 days generally is not a problem; but if a hearing is needed sooner, there is a problem. Other Committee members said that the movant can go to the court to get a hearing sooner.
The Committee considered not specify the number of days needed between the day a motion is filed and the date the motion
may be heard on briefs or argued orally. Each time a motion is filed, the movant or clerk of court would then have to determine the number of days that must elapse before a motion may be heard after being filed.
Committee members questioned whether one time limit can adequately cover all types of motions. Committee members noted that motions in limine are often filed 5 to 10 days before the pretrial conference. As a case draws close to trial, things start happening and motions need to be heard almost immediately after being filed. Other Committee members commented that motions may be heard before 28 days have passed. The court may alter the time periods.
Committee members suggested that pretrial evidentiary motions do not fit into Rule 3.2. Motions in limine are not a typical Rule 3.2 motion. Judges need flexibility. Time limits cannot be placed on motions that arise as the case comes to trial. Committee members also commented that a motion for an interim order needs to be considered sooner than other motions.
Committee members noted that Rule 3.2 does not distinguish between motions designed for oral argument and motions designed for the taking of testimony. Other Committee members noted that Rule 3.2 gives the court discretion to allow or require testimony on a motion.
Committee members said that usually when testimony is taken, briefs are not needed. Rule 3.2 does not make a distinction by providing that briefs are not required for hearings where testimony is taken. Other Committee members disagreed as to whether briefs should be required when testimony is taken at a hearing. Committee members indicated that even at hearings where testimony is being taken, a brief probably is required to tell the judge what needs to be done. In any event, the brief can be very brief.
Committee members explained that Rule 3.2 was originally patterned after U.S. District Court Rule 5. The rationale for adopting Rule 3.2 was to provide a method for hearing motions without oral argument. The U.S. District Court normally does not allow oral argument or have evidentiary hearings.
Committee members suggested that there are three kinds of motions: (1) motions that do not need oral argument; (2) motions for which oral argument is needed; and (3) motions that require testimony to be taken. Generally motions which require testimony need to be heard sooner than motions which require oral argument or hearing on briefs.
Committee members disagreed about dividing Rule 3.2 into categories. Rule 3.2 is simpler without three types of categories. Committee members suggested that determining the
type of motion would be difficult. Parties will put different labels on their motion depending upon which category of Rule 3.2 they want to govern. If Rule 3.2 is divided into three categories, disputes will arise about what type of motion is being made.
Judge Bohlman MOVED that Rule 3.2 be redrafted to subdivide the rule into categories according to the type of motion involved. Mr. McLean seconded. The Motion was withdrawn when Committee members commented that the notice requirement of Rule 3.2 need immediate attention.
Mr. Kapsner MOVED to adopt Rule 3.2 as set forth on pages 119 and 120 without the explanatory note. Mr. McLean seconded. Motion CARRIED.
The motion to break Rule 3.2 into two or three categories based on the type of motion being made was renewed. The motion CARRIED.
The meeting adjourned at approximately 5:00 p.m.
September 24, 1993, Friday
Justice Levine reconvened the Committee at approximately 9:00 a.m.
Judge Leclerc MOVED to adopt the explanatory note to proposed Rule 3.2 as set forth on lines 55-68 on page 121. The language on page 120 lines 50-53 is not to be deleted. Mr. McLean seconded. Motion CARRIED.
Rule 8.2, NDROC - INTERIM ORDERS IN DOMESTIC RELATIONS CASES (PAGES 180-185 OF THE AGENDA MATERIAL)
Staff introduced a proposal to extend the 5 day period after service of an interim order to allow 10 days for serving and filing a response. The request was made on the ground that 5 days does not give an attorney enough time to consult with his or her client and respond to the interim order.
Mr. Odegard MOVED to approve the proposal as set forth on page 182. Mr. Kapsner seconded. Motion CARRIED.
The Committee discussed the necessity of superseding that portion of Section 14-05-23, N.D.C.C., which provides 5 days for responding to an interim order. The Committee instructed staff to notify the Legislative Council of the Committee's action. Committee members commented that all procedural statutes should be superseded.
Mr. Odegard amended his motion to include the explanatory note to Rule 8.2. Motion CARRIED.
RULE 2.2, NDROC - FACSIMILE TRANSMISSION (PAGES 186-194 OF THE AGENDA MATERIAL)
The Committee considered the proposal to amend the emergency facsimile rule as set forth on page 187. The proposal incorporates Minnesota's facsimile transmission rule, and the suggestions made by the Committee at the last meeting, into Emergency Rule 2.2.
The Committee considered whether the clerk of court should be required to have a facsimile machine. The Committee agreed that the Supreme Court has authority to impose a requirement that the clerk of court must have a facsimile machine.
Some Committee members argued that it was unreasonable to require clerks of court to have facsimile machines. Concern was expressed that requiring facsimile machines would be unnecessarily expensive for rural counties with a minimal population. Committee members questioned why it would not be sufficient to require that a facsimile machine be available to the clerk of court. The clerk of court could then use facsimile machines in other county offices.
Other Committee members argued that if there is going to be a facsimile transmission rule, every clerk of court should have a facsimile transmission machine. Otherwise attorneys from other judicial districts will be caught unaware when they attempt to file by facsimile transmission at the last moment in a different judicial district. The consequences could be costly; because under Rule 3.2, you lose if a brief is not filed.
Other Committee members argued that requiring an attorney to inquire whether the clerk of court has a facsimile machine is not an unreasonable burden. The attorney from a different judicial district has to call anyways to determine the court's procedure for implementation of Rule 3.2 and to ask the clerk for the facsimile number. The attorney can just as well ask where the facsimile machine is kept and ask the clerk to pick up the facsimile transmission.
Committee members noted that a document is not filed until actually received by the clerk of court, even though the sheriff's office may receive the facsimile transmission at an earlier date. Committee members were concerned that an attorney could submit a notice of appeal by facsimile transmission not realizing that the facsimile machine was not kept in the clerk of court's office. The clerk of court may not actually receive the faxed notice of appeal until the time for appeal has expired.
Committee members were concerned about the delay between the time a facsimile machine receives the transmission and the time that a faxed document is received by the clerk. Attorneys will assume that a document is filed on the date the document is faxed.
Committee members commented that some clerks will accommodate attorneys by going to the office where the facsimile machine is kept and getting the faxed document right away, while other clerks will wait. Counties will vary as to how soon after a document is faxed, the document is actually received by the clerk.
Committee members also noted that a document must be received during business hours. Committee members commented that business hours vary from court to court. Confusion also results because of time zone variances.
The Committee instructed that the phrase "or permitted" be deleted on line 5. The Committee was concerned that the phrase "or permitted" gives the clerk of court discretion as to whether to accept a document filed by facsimile transmission.
Committee members commented that allowing the filing fee to be forwarded after filing is contrary to what clerks are instructed. The state auditor instructs courts not to accept filings until the clerks actually obtain the filing fee.
The Committee considered the proposed amendment to subdivision (b) on pages 188 and 189. The proposed language is from Minnesota's facsimile transmission rule. The Committee decided that the language on lines 42-50 is unnecessary. On lines 37-40, the provision providing that facsimile transmission may be used for the issuance of all orders and warrants is broad enough. The Committee decided that the sentence on lines 51-53 is unnecessary. The language states the obvious. The Committee also decided that the sentence on lines 55-57 is not needed if the original language is kept in the rule on lines 39-40. The first sentence of subdivision (b) should provide as follows:
"Facsimile transmission may be used for the issuance of all orders and warrants and they shall have the same force and effect as the original."
The Committee decided to keep the sentence proposed on lines 58-62.
The Committee compromised in regard to whether the clerk of court should be required to have a facsimile transmission machine. The Committee agreed upon the language following:
"The clerk of court shall have a facsimile receiving machine available in the courthouse."
Professor Kraft MOVED to adopt Rule 2.2 with the changes suggested by the Committee. Mr. Odegard seconded. Motion CARRIED.
The Committee considered the explanatory note to Rule 2.2 on pages 189 and 190. The Committee suggested that lines 76-83 be deleted, because they are inconsistent with the changes made by the Committee and repeat what is already contained in the rule. Lines 72-75 should be kept. Lines 66-71 should be deleted. The historical information may be obtained from the source note which contains references to the minutes of the Joint Procedure Committee.
Mr. Odegard MOVED to adopt the explanatory note with the changes made by the Committee. Judge Wright seconded. Motion CARRIED. The Committee commented that the clerks of courts should be notified when the proposed amendment is submitted to the Supreme Court so that the clerks may comment.
RULE 5, N.D.R.Civ.P - SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS (PAGES 195-200 OF THE AGENDA MATERIAL)
Staff explained that Rule 5, N.D.R.Civ.P., was adopted as an emergency rule in February 1992 to provide for service by facsimile transmission. The Committee considered whether to recommend that Rule 5 be adopted on a permanent basis with the changes shown on pages 196 and 197. The proposal would allow service by facsimile transmission. Staff explained that lines 27-29 are deleted in the proposal because service is not made upon a party.
The Committee discussed what should be required for proof of service by facsimile transmission. Committee members commented that the printed confirmation of receipt does not contain the receiving party's facsimile number or the time received by the receiving facsimile machine. Also, parties do not always keep the date and time on the machines operating accurately. The time can be altered.
Committee members questioned the necessity of having additional proof of service requirements for facsimile transmission. Committee members argued that only an affidavit of service should be required as is required for service by mail.
Committee members commented that Rule 5 does not require a copy of the faxed document to be sent in addition to the copy that was faxed. The receiving party controls the quality of paper that the faxed copy will be printed upon.
Mr. Odegard MOVED to adopt Rule 5 as shown on pages 196 and 197, but with the deletion of the last two sentences in subdivision (f). Professor Kraft seconded. Motion CARRIED.
Judge Leclerc MOVED to adopt the explanatory note as shown on pages 197-200 with the changes following: (1) the word "are" should be changed to "were" on line 63 and the word "is" should be changed to the word "was" on line 64; and (2) the sentence starting on line 103 should be deleted. Mr. Odegard seconded. Motion CARRIED.
RULE 6, N.D.R.Civ.P. - TIME; AND RULE 45, N.D.R.Crim.P. - TIME (PAGES 201-208 OF THE AGENDA MATERIAL)
Staff explained that Rule 6, N.D.R.Civ.P., was adopted as an emergency amendment in February 1992 as shown on pages 202-203. The underscoring depicts what was previously recommended by the Committee and adopted by the Court on an emergency basis. Mr. Lamb MOVED that the Committee recommend the adoption of Rule 6 on a permanent basis. Judge Glaser seconded. Motion CARRIED.
The Committee questioned the changes in the explanatory note. Staff explained that the references to the minutes of the Joint Procedure Committee belong in the list of sources. Mr. Lamb MOVED to adopt the explanatory note as shown on pages 203-204. Mr. Odegard seconded. Motion CARRIED.
Staff explained that Rule 45, N.D.R.Crim.P., was not amended as an emergency rule as was Rule 6. For some reason, the Committee did not previously consider amending Rule 45.
Mr. McLean MOVED that Rule 45 be approved as shown on pages 205-206, and that the explanatory note be approved as shown on pages 206-208. Mr. Lamb seconded. Motion CARRIED.
ORDERS FOR TRANSCRIPT OF COURT PROCEEDING (PAGES 209-222 OF THE AGENDA MATERIAL)
Staff explained that court reporters are not getting adequate time for completion of the transcript due to a violation of Rule 10(b), N.D.R.App.P. Attorneys do not file proof of service of the order for transcript with the clerk of the trial court when filing a notice of appeal as required by Rule 10(b). Attorneys often hold off on ordering the transcript to wait and see if they can settle before incurring the cost of having the transcript prepared. When an attorney does not order the transcript on time, the court reporter gets less than the 50 days provided by Rule 10 for preparation of the transcript. The court reporter is put in the awkward position of having to request an extension of time. Committee members questioned why the court reporter should be responsible for getting an extension when the attorney is the one who violated the rule.
Committee members commented that the Court Technology Committee is working on a rule dealing with videos of court
proceedings, and that rule will pertain to how a transcript is ordered and prepared. Justice Leclerc is to send the rule and proposal to Justice Levine.
Committee members argued that an appeal should not be allowed to be filed unless the order for transcript is made in a timely manner. Other Committee members argued that the proposal on page 215 is a draconian measure that would probably result in dismissal of cases where a transcript is necessary for appeal. Requiring court reporters to seek an extension is less significant compared to what a client loses if an appeal is lost.
Committee members suggested that attorneys should be allowed to order the transcript 10 days after filing the notice of appeal as allowed by Rule 10, Fed.R.App.P. Committee members also suggested that the 50 days should run from the date the transcript is ordered, and not the date on which the notice of appeal is filed.
RULE 609, N.D.R.Ev. - IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME (PAGES 263-273 OF THE AGENDA MATERIAL)
Staff explained that at the November 1991 meeting, the Committee decided to amend Rule 609, N.D.R.Ev., to track the December 1990 amendment to the federal rule. However, the Committee did not have an accurate version of the amended federal rule. The proposed rule considered by the Committee did not contain the phrase "subject to Rule 403" as does the amended federal rule.
The proposal on page 268 adds the phrase "subject to Rule 403," so that the admissibility of evidence that a witness other than the accused has been convicted of a crime is subject to the Rule 403 balancing test.
Mr. Kapsner MOVED that the Committee approve the proposal to amend Rule 609 and explanatory note as set forth on pages 268-270. Mr. Odegard seconded. Motion CARRIED.
RULE 46, N.D.R.Crim.P. - RELEASE OF CUSTODY (PAGES 223-262 OF THE AGENDA MATERIAL)
Staff explained that the attorney general's office has requested that Rule 46, N.D.R.Crim.P., be amended to authorize judicial officers to consider the safety of any other person or the community when considering release of the accused pending trial. The. Committee reviewed and discussed applicable case law and constitutional law.
The Committee questioned whether North Dakota's rule can track federal law, because federal law authorizes preventative detention. North Dakota has a special
constitutional provision that provides that all persons shall be bailable by sufficient sureties except for capital offenses. N.D. Const. Art. I, § 11. Other states with similar constitutional provisions have held that preventative detention is unconstitutional. Bail cannot be denied.
Preventative detention may also be unconstitutional unless extensive procedural protections are afforded as provided in the federal statute. The Committee discussed Aime v. Commonwealth, 611 N.E.2d 204 (Mass. 1993). In Aime, the court held that it is unconstitutional for a judge to impose unattainable bail to protect the safety of any other person in the community. Committee members commented that preventative detention is a substantive matter.
The Committee noted that the federal rules are enacted by Congress and that federal Rule 46 provides for preventative detention by incorporating 18 U.S.C. 3142. Committee members commented that if the Court approves a proposal to amend Rule 46 to make safety a relevant bail consideration, the Court would ultimately end up deciding the constitutionality of a rule that the Court adopted. Preventative detention is a substantive matter for the Legislature.
Committee members commented that if preventative detention is authorized for someone who is a danger to the community, someone could be detained who is dangerous to the community even if they are not charged with a crime. Committee members commented that the accused is to be presumed innocent until convicted of a crime. In preventative detention cases, the accused is held in detention even though the system presumes the accused to be innocent.
The Committee commented that preventative detention is different than commitment procedures because civil commitment requires a showing that the person being committed is mentally ill. Committee members thought that detention is necessary if safety is the issue.
Committee members commented that protective orders do not assure the safety of anyone person or the community. If someone does not obey a protective order, they are arrested and then released on bail. The only way the safety of others can be assured is if the person is detained. Ordering someone to stay away from another person does not assure the safety of that other person. Bail does not assure the safety of another person unless the amount of bail is set so high that the accused is detained.
Judge O'Keefe MOVED to reject the proposed amendment to Rule 46. Mr. Kautzmann seconded. Committee members commented that preventative detention is probably unconstitutional in North Dakota. Preventative detention does not comport with the philosophy of Rule 46 which is to assure the appearance of the
accused. Committee members indicated that the thoughts of the Committee should be explained to the attorney general. The Committee thought that North Dakota's Constitution needs to be amended for preventative detention to be permissible.
The Motion was withdrawn so that there could be further discussion of what the Committee thought was a very important issue. A quorum was no longer present.
The meeting adjourned at approximately 12:00 noon.