Joint Procedure Committee Meeting

Scheduled on Thursday, September 26, 1985 @ 10:00 AM

MINUTES OF MEETING

Joint Procedure Committee

September 26-27, 1985

CALL TO ORDER

The meeting was called to order at 9:00 a.m., September 26, 1985, by Justice H. F. "Sparky" Gierke, Chairman.

ATTENDANCE

Present:

Hon. Wallace D. Berning
Mr. Leonard A. Bucklin
Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Mr. Robert C. Heinley
Professor Larry Kraft
Mr. Ward M. Kirby
Mr. James L. Lamb
Hon. Lawrence A. Leclerc
Hon. Beryl J. Levine
Mr. LeRoy A. Loder
Hon. William S. Murray
Hon. James H. O'Keefe
Mr. Ray Rund
Hon. Kirk Smith
Mr. Dean Winkjer

Absent:

Hon. Frank J. Kosanda
Mr. David L. Peterson

APPROVAL OF MINUTES

Judge Burdick MOVED that the minutes of the March 28-29, 1985, meeting be approved as submitted. Judge Leclerc seconded the motion. Motion CARRIED.

SUPREME COURT ACTION

Staff informed the committee as to the action by the Supreme Court on the recommended rules which were submitted to the court. The committee was advised as to which rules were rejected, which rules contained language changes, and which rules were acccepted and adopted by the court.

NDRCivP, Rule 67 was changed to read from line 12-15 "Whenever possible the money must be deposited in an interest bearing account or invested in a interest bearing instrument, or both, as directed by the court." In addition, NDRAppP, Rule 28, was changed by the court whereby section (a)7 was deleted and

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Subdivision (g) amended the length of briefs from 50 to 40 pages and reply briefs from 25 to 10. Finally, NDRAppP, 35.1, was also changed by the court whereby subdivision (a)(2) was changed to read the following on lines 7 and 8 "(2) the judgment of the trial court is based on findings of fact that are not clearly erroneous;" and the court renumbered (a)(5) as (a)(7) and added new subdivisions (a)(5) and (a)(6). The new sections read as follows "(5) the order of an administrative agency supported by a preponderance of the evidence; (6) the summary judgment, directed verdict, or judgment on the pleading is supported by the record; or ,".

Judge Leclerc MOVED that NDRCivP 67 be moved to the bottom of the agenda. Mr. Loder seconded the motion. Motion FAILED. Judge Leclerc MOVED that the Supreme Court be requested to reconsider the adoption on NDRCivP 67. Professor Kraft seconded the motion. Motion CARRIED.

The Supreme Court referred NDRAppP, Rule 31(c) to the Joint Procedure Committee for study and also sent a copy of Rule 22 of the llth Circuit to the Committee for review. The court is concerned with Rule 31(c) in that if an appellee fails to file his brief, he will not be heard at oral argument except by permission of the court. Rule 22 of the 11th Circuit is attached for reference.

Due to the change to NDRAppP 28, in which subdivision (a) 7 was deleted, Judge Leclerc MOVED that lines 17-20 be deleted in the explanatory note to Rule 28. Judge Smith seconded the motion. Motion CARRIED.

Mr. Bucklin suggested that because of the committee's uncertainty as to what direction to take when the Supreme Court rejects a rule change that a resolution be sent to the Supreme Court from the Joint Procedure Committee requesting the Supreme Court to explain the action that they take on rules that have been submitted by the Joint Procedure Committee to the court for adoption. The resolution would request the Supreme Court to explain why they may reject a rule or amend a rule that has been submitted for adoption and to send such explanation to the Joint Procedure Committee.

Mr. Winkjer MOVED that the Joint Procedure Committee send a resolution of support to the Supreme Court concerning the courts adoption of NDRAppP 35.1. Judge Leclerc seconded the motion. Motion CARRIED. Judge Glaser abstained and Judge Burdick voted no.

JUDICIAL REFEREE

At the March 28-29, 1985 meeting, the Joint Procedure Committee decided not to act on a rule of procedure for judicial referees until the legislation concerning juvenile court referees had been passed. House Bill #1586 was passed by the 1985

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legislature. As a result of that legislation Administrative Rule 13 was submitted to the Supreme Court for consideration by the Court Services Administration Committee. The Supreme Court adopted Administrative Rule 13.

Judge Burdick suggested that Administrative Rule 13 be placed in the Rules Book and that it be placed in the section entitled Rules of Court. Judge Leclerc MOVED to place Administrative Rule 13 at the bottom of the agenda. Judge Burdick seconded the motion. Motion CARRIED.

NDRCivP 58

The committee previously delayed action on proposed Rule 58, NDRCivP until pending legislation became final. Senate Bill #2275 was passed by the 1985 legislature and among other things eliminated the statutory requirement for a minute book and a judgment book.

Judge Glaser MOVED to strike in line 3 "or the judge thereof" and insert "the judgment". Judge Burdick seconded the motion. Motion passed.

After much discussion concerning proposed Rule 58 and the changes that the committee wished to make, it was suggested by Professor Kraft that the committee start fresh and completely re-draft proposed Rule 58. Judge Burdick volunteered to draft a new Rule 58 for consideration by the committee at this meeting.

CONTEMPT

The committee discussed the proposed legislation concerning Contempt. One of the questions presented was whether States Attorneys should be involved in arrearage cases. Section 14-08-01 of the proposed legislation as found on agenda meeting materials pages 65-66, would involve the States Attorney in these cases.

Judge Burdick MOVED to strike lines 17-19 on page 56 which reads ", however, the inability to comply with an order is a defense in contempt proceedings based on a violation of that order". Judge Glaser seconded the motion. Motion CARRIED.

Judge Leclerc MOVED to defer further action regarding Contempt to the next meeting and to place Contempt at the top of the agenda. Judge Burdick seconded the motion. Motion CARRIED.

JURY SIZE

The 1985 legislature amended sections 28-14-03.1 and 29-17-12 of the North Dakota Century Code, which relates to the size of a jury in civil cases and criminal cases. Section 28-14-03.1 NDCC as amended, provides that in all civil actions

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when a jury is impaneled the jury shall consist of six qualified jurors unless any party makes a timely written demand for a jury of nine. The old law allowed for a written demand for a jury of twelve. Section 29-17-12, NDCC as amended, provides that all felony and class A misdemeanor cases when a jury is impaneled shall consist of six qualified jurors unless the defendant makes a timely written demand for a jury of twelve. In all other misdemeanor cases when a jury is impaneled, a jury shall consist of six qualified jurors. Prior law provided that in all felony cases a jury of twelve was provided and in all misdemeanor cases the jury consisted of six unless and party made a timely written demand for a jury of twelve. Because of the legislative changes Rules 38(c) and 48(b) NDRCivP and Rule 23(b) NDRCrimP should be amended accordingly. Judge Leclerc MOVED that the language in proposed Rule 38(c) and Rule 48(b) NDRCivP be adopted. Judge Smith seconded the motion. Motion CARRIED.

Proposed Rule 23(b) and the alternative proposed Rule 23 (b) NDRCrimP were discussed by the committee. The committee questioned as to whether the statutory change to Section 29-17-12, NDCC was in line with Article I, Section 13 of the North Dakota Constitution which provides that a person accused of a crime for which he may be confined for a period of more than one year has the right of trial by a jury of twelve. Staff was requested to review caselaw during the noon hour.

RECESS

The meeting recessed to 1:30 p.m., September 26, 1985.

CALL TO ORDER

The meeting was called to order at 1:30 p.m., September 26, 1985, by Justice H. F. "Sparky" Gierke, Chairman.

ATTENDANCE

The roll call remained the same except that Mr. David Peterson was present and Mr. Ray Rund and Mr. Leonard Bucklin were absent.

JURY SIZE

Staff distributed copies of cases concerning a defendant's right to a jury of twelve under Article I, Section 13 of the North Dakota Constitution. Those cases indicated that a defendant in felony cases has a constitutional right to a jury of twelve and does not waive his right to a jury of twelve when he stands mute before the court. After the committee members reviewed the cases Judge Burdick MOVED that the alternative proposed Rule 23(b) NDRCrimP be amended as follows: on lines 1 and 2 delete "and class A misdemeanor", line 3 delete "six" and insert "twelve" and insert a "." after the word jurors and delete "unless the defendant makes a", line 4 delete "timely written

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demand for a jury of twelve." and insert "In class A misdemeanor cases in which a jury is impaneled, the jury shall consist of six qualified jurors unless the defendant makes a timely written demand for a jury of twelve." Mr. Lamb seconded the motion. Motion CARRIED.

Judge Burdick made a motion to adopt alternative proposed Rule 23(b) NDRCrimP as revised. Mr. Lamb seconded the motion. Motion CARRIED.

NDRCivP 38(b)

Judge Glaser asked the committee to consider a change to Rule 38(b) NDRCivP due to the fact that there apparently is some difficulty in the interpretation of the language contained in Rule 38(b) NDRCivP which states that the right to trial by jury is waived unless demanded "at the time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue." Judge Burdick MOVED to revise the language in proposed Rule 38(b) NDRCivP on page 80, line 4, to lift the overstriking of the language "ten days after" and on line 7 overstrike "Such" and insert "The". Mr. Kirby seconded the motion. After much discussion as to whether the rule should be changed and whether the time period for demanding a trial by jury should be extended, Judge Burdick MOVED to withdraw his motion with the approval of Mr. Kirby. After additional discussion concerning whether a rule change would create more problems than the change would solve, Mr. Peterson MOVED the previous motion which was on the floor by Judge Burdick. Mr. Heinley seconded the motion. Motion FAILED. The committee requested that a copy of the minutes be sent to Senator John Olson with a copy of the recent N.D. decision entitled Shark v Thompson.

RECUSAL

Judges being named as defendants in lawsuits is increasing. There is a pressing problem and the question is whether there is a need for a procedural rule to address this. The committee urged that NDRCivP 21 be used as much as possible, since this rule would take care of the problems that have been presented when judges are either added as a party in the caption of the case that is before him or when they are named as a defendant in a separate lawsuit than the one that they are currently handling. Judge Glaser submitted a proposed change to NDROC 3.1(b). The proposed change to NDROC 3.1(b) is as follows:

PLEADINGS

(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. The clerk shall not accept for filing any document which includes in the name of the litigants any name not included in the com-

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plaint unless the addition has been authorized by order of the court or by Rule 14, NDRCivP. The clerk shall provide a copy of Rule 3.1 (b), N.D.R.O.C., to the person who attempts to file such a document and shall retain a copy of the returned document, along with a notation thereon that the original was rejected and returned to the filer and the date of the return.

Mr. Winkjer MOVED to adopt NDROC 3.1(b). Judge Leclerc seconded the motion. Motion CARRIED. It was discussed that the explanatory note include references to Rules 10(a) and 21 NDRCivP.

The committee discussed referring this issue to the Judiciary Standards Committee.

Judge Leclerc MOVED that a resolution be sent to the Judiciary Standards Committee to adopt a standard along the lines of the rule and explanatory note that was proposed by Judge O'Keefe and that a copy of said proposed rule and explanatory note be sent to the Judiciary Standards Committee. Mr. Lamb seconded the motion. Motion CARRIED.

PUBLIC LAW 98-473

Because of changes contained in Public Law 98-473-October 12, 1984, Rule 12.2 NDRCrimP and Rule 704 NDREv was submitted for committee consideration. Judge Smith MOVED to delay action on Rule 704 NDREv and Rule 12.2 NDRCrimP until the next meeting. Mr. Loder seconded the motion. Motion CARRIED.

NDRCivP 68(c)(3)

Two practitioners requested that the Joint Procedure Committee consider amending NDRCivP 68(c)(3) in order to allow the statements of confession of judgments to be filed in county court as well as in district court.

Mr. Winkjer MOVED to delete "district" from line 24, page 109, and to delete the new language "or the county court" on page 109. Judge Smith seconded the motion. Motion CARRIED.

Judge Smith MOVED to keep the striken language on lines 28 to 30 on page 110 and on line 29 to overstrike the word "book" and insert "docket". Mr. Loder seconded the motion. Motion CARRIED.

Mr. Winkjer MOVED to adopt NDRCivP 68(c)(3) as amended. Judge Leclerc seconded the motion. Judge Burdick MOVED to table action on Rule 68(c)(3) until the committee discussed Rule 58 as drafted by Judge Burdick which is on the agenda for the meeting tomorrow morning. Mr. Lamb seconded the motion. Motion CARRIED.

Mr. Peterson requested that staff revise NDRCivP 68(a) to allow a plaintiff to make an offer of judgment. It was recommended that this be placed on the agenda for the next meeting.

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FILING FEE AND SERVICE OF PROCESS IN CIVIL ACTIONS

Judge Glaser pointed out to the committee that there is a problem that often arises when a plaintiff does not file the action in that when a defendant wishes to take some action most clerks will not accept documents for filing until the filing fee is paid. Discussion on this issue ensued and the ultimate conclusion was that a rule be drafted whereby when a defendant demands that the action be filed, the demand would require the plaintiff to file the action within a certain time frame.

Mr. Lamb MOVED that staff offer a proposed rule concerning this issue for consideration at the next meeting. Judge Leclerc seconded the motion. Motion CARRIED.

Judge Glaser also pointed out that the practice is growing in urban areas of having the opposite party simply admit service of the summons and complaint, and that it is fine if it is possible to do so. Another alternative to formal service of process is a rule which allows a plaintiff to forward the summons and complaint to the defendant, along with a request for an admission of service and a notice that if service is not admitted and formal service is required, the defendant will be required to pay the costs of that service. Judge Burdick indicated that he felt that this area is covered by NDRCivP 4(h)(5). Mr. Loder indicated that there is a Federal Rule governing this and that he believes that it is a recent Federal District Court Rule.

Mr. Loder MOVED that staff propose a rule on this subject for consideration at the next meeting. Professor Kraft seconded the motion. Motion CARRIED.

Judge Burdick indicated that perhaps the rule should be discretionary and allow the plaintiff to recover the cost of service as costs.

MENTAL HEALTH APPEALS

Chief Justice Erickstad received a letter from Judge Benny Graff requesting that the court consider allowing anonymity for the appealing mental health patient who ends up being involuntary committed. That letter was referred to the Joint Procedure Committee for review. It was discussed by the committee that the use of initials similar to what is used in juvenile cases be implemented in mental health appeals.

Judge Smith MOVED that staff prepare a rule which allow the use of initials rather than the names of the parties in mental health cases. Judge Burdick seconded the motion. Motion CARRIED.

NDRCivP 45

Mr. Peterson MOVED to adopt proposed Rule 45, NDRCivP. Mr. Lamb seconded the motion. Motion CARRIED.

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FEDERAL RULE CHANGES

The committee discussed the federal rule changes which went into effect August 1, 1985.

RECESS

The meeting recessed to 9:00 a.m., September 27, 1985.

CALL TO ORDER

The meeting was called to order at 9:00 a.m., September 27, 1985, by Justice H. F. "Sparky" Gierke, Chairman.

ATTENDANCE

Present:

Hon. Wallace D. Berning

Hon. Eugene A. Burdick

Hon. Gerald G. Glaser

Mr. Robert C. Heinley

Professor Larry Kraft

Mr. Ward M. Kirby

Mr. James L. Lamb

Hon. Lawrence A. Leclerc

Mr. LeRoy A. Loder

Hon. James H. O'Keefe

Mr. Ray Rund

Hon. Kirk Smith

Absent:

Mr. Leonard A. Bucklin

Hon. Frank J. Kosanda

Hon. Beryl J. Levine

Hon. William S. Murray

Mr. Dean Winkjer

FEDERAL RULE CHANGES CONTINUED

Judge Burdick MOVED that staff revise NDRCrimP 35 to reflect the Federal position concerning the reduction of sentence. Judge Leclerc seconded the motion. Motion CARRIED.

Judge Leclerc MOVED that staff be directed to revise NDRCivP 6 and NDRCrimP 11, 12.1, 12.2, 45, and 49 to track the federal rule changes. Mr. Peterson seconded the motion. Motion FAILED.

Judge Leclerc MOVED that staff work on rule drafts for NDRCrimP 12.1 and 12.2 to track the federal changes. Professor Kraft seconded the motion. Motion CARRIED.

Judge Leclerc MOVED that staff prepare a rule draft to amend NDRCrimP 11 to track the federal rule. Mr. Rund seconded the motion. Motion CARRIED.

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NDRCivP 58

Proposed Rule 58, NDRCivP

ENTRY OF JUDGMENT

1 Upon the filing of an order for judgment, the prevail-

2 ing party shall submit to the clerk an appropriate form of

3 the judgment. The clerk shall sign and file the judgment

4 and make an entry of it in the register of civil actions and

5 attach the judgment to the judgment roll.

6 If the prevailing party fails to submit to the clerk an

7 appropriate form of the judgment within 30 days after the

8 order for judgment is filed, any party may submit an appro-

9 priate form without prejudice to any rights that party may

10 have to challenge it.

11 If the judgment directs the payment of money in a sum

12 certain, or which by calculation can be made certain, the

13 clerk shall also docket the judgment in the judgment docket

14 as provided by law.

Mr. Rund MOVED to adopt NDRCivP 58 as submitted by Judge Burdick. Professor Kraft seconded the motion. Mr. Peterson MOVED to delete on lines 4 and 5 "and attach the judgment to the judgment roll." and insert a "," at the end of line 4 and on line 5 insert "at which time the judgment becomes effective.". Judge Leclerc seconded the motion. Motion CARRIED to amend Rule 58. Mr. Rund's motion to adopt Rule 58 CARRIED.

NDRCivP 68(c)(3)CONTINUED

The motion to adopt Rule 68(c)(3) was tabled until action was taken on Rule 58 NDRCivP. After the committee took action on Rule 58 the committee discussed Rule 68(c)(3).

Judge Burdick MOVED that NDRCivP 68(c)(3) be amended as follows: on line 22 delete "such" and insert "that"; on line 26 delete "make an"; on line 27 delete ", whereupon the statement and order may" and insert a "." after the word clerk; on lines 28 through 30 delete "be filed in the office of the clerk,. who shall enter in the judgment book a judgment for the amount confessed with cost.; on line 30 delete "and affidavit with the judgment shall" and insert ", order for judgment, and judgment entered" after the word statement; on line 31 delete "thenceforth become" and insert the word "constitute"; on line 33 place a "." after the word cases and delete "in such court."; on line 36 delete "such" and insert "that"; on line 37 delete "shall" and insert "must"; on line 40 delete "such" and insert "the"; on line 41 delete "said" and insert "the"; on line 42 delete "such" and insert "the". Mr. Rund seconded the motion. Motion CARRIED.

(Judge Leclerc left the meeting)

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Thereafter, the motion to adopt Rule 68(c)(3) which was made by Mr. Winkjer at yesterday's meeting was on the floor. Motion CARRIED.

It was recommended by Mr. Peterson that staff review the following Rules of Evidence, Rules 101 and 1101.

SUSPENDED SENTENCES

The committee discussed the impact of State v Nace Criminal #1055, it was suggested that NDRCrimP 32 be reviewed in light of the Nace decision.

(Judge Berning left the meeting)

SOUTH CENTRAL JUDICIAL DISTRICT RULE 1

Judge Burdick MOVED that no action be taken on Local Rule 1. Mr. Kirby seconded the motion. Judge O'Keefe made a substitute motion to reject Local Rule 1. Mr. Peterson seconded the motion. Judge Burdick withdrew his motion with consent with Mr. Kirby. Motion to reject Local Rule 1 CARRIED.

ADJOURNMENT

The meeting was adjourned at 11:05 a.m.

___________________________
Secretary