Joint Procedure Committee Meeting

Scheduled on Thursday, September 26, 1996 @ 2:00 PM

MINUTES OF MEETING 
Joint Procedure Committee
September 26-27, 1996

TABLE OF CONTENTS

Proposed Rule 412, N.D.R.Evid. - Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or AllegedSexual Predisposition... 2
Proposed Rules 413-415, N.D.R.Evid. - Evidence of Similar Acts in Sexual Assault and Child Molestation Cases... 5 
Rule 32, N.D.R.Crim.P. - Sentence and Judgment... 6
Rule 43, N.D.R.Crim.P. - Presence of the Defendant... 8
Rules 50, 52 § 59, N.D.R.Civ.P. - Post-Judgment Motions... 10
Explanatory Notes - Rules 17.1 § 33, N.D.R.Crim.P... 12
Rule 804, N.D.R.Evid. - Hearsay Exceptions; Declarant Unavailable... 13 
Rule 4, N.D.R.Civ.P. - Persons Subject to Jurisdiction--Process--Service... 14 
Rule 5, N.D.R.Civ.P. - Service and Filing of Pleadings and Other Papers... 16 
Rule 2.1, N.D.R.App.P. - Mental Health Appeals... 18
Rule 10, N.D.R.App.P. - Transcript on Disk... 18
Rule 30, N.D.R.App.P. - Appendix to the Briefs... 19
Proposed Rule 6.7, N.D.R.O.C. - Jury Note Taking... 19
Rule 38, N.D.R.Civ.P. - Jury Trial of Right... 20
Rule 5, N.D.R.Civ.P. - Service and Filing of Pleadings and Other Papers... 20

CALL TO ORDER

The meeting was called to order at approximately 1:00 p.m., September 26, 1996, by Justice Dale V. Sandstrom, Chair.

ATTENDANCE

Present:
Justice Dale V. Sandstrom
Honorable Bruce E. Bohlman
Honorable Donovan Foughty
Honorable Gail Hagerty
Honorable Maurice R. Hunke (9/26/96 only)
Honorable Lawrence A. Leclerc
Honorable Kirk Smith
Honorable James A. Wright (9/26/96 only)
Mr. Robert C. Heinley
Mr. Michael R. Hoffman
Mr. John C. Kapsner
Professor Larry Kraft


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Mr. James L. Lamb
Mr. Ronald H. McLean
Ms. Sherry Mills Moore
Ms. Cathy Howe Schmitz

Absent:
Honorable Wallace D. Berning
Honorable Ronald L. Hilden
Ms. Patricia R. Monson
Mr. James T. Odegard

Staff:
Mr. Gerhard Raedeke

PRELIMINARY MATTERS

The Joint Procedure Committee SBAND representative, Mr. Kapsner, relayed a request from the SBAND Board of Governors. The Board of Governors wants Committee meeting material put on the Supreme Court web page before Committee's meetings so people can view the material and contact Committee members before the meeting.

APPROVAL OF MINUTES (PAGES 1-19 OF THE AGENDA MATERIAL).

Judge Leclerc MOVED to approve the minutes from the April 25, 1996, meeting as submitted. Mr. Heinley seconded. Motion CARRIED.

PROPOSED RULE 412, N.D.R.Evid. - SEX OFFENSE CASES; RELEVANCE OF ALLEGED VICTIM'S PAST SEXUAL BEHAVIOR OR ALLEGED SEXUAL PREDISPOSITION (PAGES 20-50 OF THE AGENDA MATERIAL).

At the last meeting, the Committee considered and rejected the version of Rule 412 adopted by Congress, effective December 1, 1994, which is applicable to civil and criminal cases. Instead, the Committee adopted the version of Rule 412 submitted to Congress by the Supreme Court which is applicable only to criminal cases.

Rule 412 was put back on the agenda for further consideration because there was inadequate consideration and discussion of Rule 412 at the last meeting. Often, when faced with a difficult and complex amendment or an entirely new rule, the proposal will be reviewed at two meetings.

Justice Sandstrom suggested the Committee consider adopting a standing rule providing for review of new rules at two meetings, unless at the first meeting two-thirds approve the


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proposal. Committee members said, they need a chance to think about proposals between meetings.

Staff explained Rule 412, Fed.R.Evid., went through an expedited rule-making process as a preemptive strike against more radical reform by Congress. When the rule was presented to the Supreme Court by the Advisory Committee, the Supreme Court thought the Advisory Committee had gone too far in its attempt to appease Congress. The Supreme Court rejected proposed Rule 412.

The Supreme Court was opposed to extending Rule 412 to civil cases. Extending Rule 412 to civil cases undermines federal case law giving employers a right to introduce evidence of sexual behavior and predisposition in sexual harassment cases. In Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986), the Supreme Court held evidence of a plaintiff's sexual provocative speech or dress is obviously relevant for determining whether sexual advances are welcome in a sexual harassment case.

As a result of its case law, the U.S. Supreme Court rejected proposed Rule 412's application to civil cases and submitted a version of Rule 412 to Congress which was applicable only to criminal cases. In turn, Congress rejected the proposal submitted by the Supreme Court and adopted the draft prepared by the Advisory Committee in which Rule 412 is applicable to civil cases.

On page 33, the Committee reviewed the version of Rule 412 adopted by Congress which is applicable to civil cases.

The Committee questioned what kind of cases the rule would govern. Rule 412 does not apply unless the person against whom the evidence is offered can reasonably be characterized as a "victim of alleged sexual misconduct." See Federal Advisory Committee Notes. The Committee did not think this characterization would make the rule applicable to most divorce cases. The Committee noted Rule 412 applies to sexual harassment cases.

The Committee discussed whether Rule 412 should apply to civil cases. Under Rule 412, evidence of sexual behavior or sexual predisposition would still be admitted in civil cases if the evidence has substantial probative value.

Others argued, the civil exception under Rule 412 makes the admission of evidence of sexual behavior or sexual predisposition too difficult in civil cases. The balancing test in Rule 412 is different than Rule 403's balancing test. The balancing test in Rule 412 creates a strong presumption of exclusion. The burden is shifted to the proponent to demonstrate admissibility. The threshold for admissibility is raised. The probative value must substantially outweigh the danger of harm to any victim and unfair prejudice to any party. The potential danger


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of harm to the victim is also put on the scale with the danger of unfair prejudice to the parties.

Members argued the Committee should follow the lead of the Supreme Court rather than Congress. The Supreme Court will get the last word and will find denying admission of relevant evidence is a denial of due process.

Committee members argued a number of reasons exist for not extending Rule 412 to civil cases. In a civil action, the victim is not a draftee in the war on crime. The plaintiff is seeking to achieve a monetary gain. The person's victimhood is self-certified; there is no preliminary screening. A defendant in a civil action does not get the same constitutional protections as a defendant in a criminal case, such as appointment of counsel, the requirement guilt be proven beyond a reasonable doubt, and the privilege against self-incrimination.

Committee members stated the new rule would create confusion as to when evidence of sexual behavior or sexual predisposition is admissible in a civil case. The determination of what is welcome in a sexual harassment case depends upon the particular person. The Committee noted Rule 403 and Rule 404 already provide safeguards. The admissibility of evidence is easier to understand under the more familiar test in Rule 403.

Members questioned how adoption of the rule will protect privacy as Rule 26 allows discovery of inadmissible evidence. The Committee noted the Federal Advisory Committee Notes provide the purpose of Rule 412 should be considered by the court when deciding whether to order discovery. The note indicates a Rule 26(c) protective order should be given to protect the rationale of Rule 412.

Some Committee members stated they are opposed to extending Rule 412 to all civil cases, but a third option should be available. For instance, a tort victim of rape should have the same protections in a civil case as in a criminal case. In a civil action based on sexual behavior that is also criminal behavior, the civil plaintiff should receive the same protection they receive in a criminal trial.

Judge Hunke MOVED to adopt the version of Rule 412 on pages 33-35 which was adopted by Congress and is applicable to civil cases. Judge Bohlman seconded. Motion failed.

Next, on pages 49-50, the Committee considered whether to adopt the version of Rule 412 submitted to Congress by the Supreme Court which is applicable only to criminal cases. The Committee compared proposed Rule 412 to North Dakota's current statutes on pages 30-32.


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The Committee noted, North Dakota's rape shield statute, Section 12.1-20-14, N.D.C.C., is narrower in scope than proposed Rule 412 in some respects. North Dakota's statute only applies to sexual imposition and does not address admissibility of sexual evidence in other criminal prosecutions such as sexual assault, sexual abuse of words, solicitation of minors, and sexual exploitation by a therapist. Also, North Dakota's statute only applies to the alleged victim of the offense charged. Rule 412 applies to any alleged victim including pattern witnesses. Finally, North Dakota's statute only applies to sexual conduct. Rule 412 addresses sexual behavior and sexual predisposition.

In some respects, North Dakota's statute is broader than proposed Rule 412. The statute seems to allow reputation, opinion and specific instance evidence on the issue of consent or as rebuttal evidence. Rule 412's exceptions only allow specific instance evidence. Also, North Dakota's statute allows rebuttable evidence concerning the complaining witnesses sexual conduct if the prosecution first offers evidence of the complaining witnesses sexual conduct.

Committee members commented the language of the statutes is confusing. The rule is helpful because it is more specific as to when evidence of sexual behavior is admissible. For instance, under Rule 412 evidence of a victim's dress is inadmissible sexual predisposition evidence. Under the statutes, it is necessary to engage in a balancing test different than Rule 403's balancing test. Admissibility becomes unclear and confusing.

The Committee voted whether to adopt the version of Rule 412 adopted by the Supreme Court which is only applicable to criminal cases. Eight members were in favor of adopting the proposal, five were opposed.

PROPOSED RULES 413-415, N.D.R.Evid. - EVIDENCE OF SIMILAR ACTS IN SEXUAL ASSAULT AND CHILD MOLESTATION CASES (PAGES 51-68 OF THE AGENDA MATERIAL).

Staff explained proposed Rules 413-415 make evidence of a defendant's past sexual acts routinely admissible in civil or criminal cases alleging sexual assault or child molestation.

Staff further explained the political process through which Rules 413-415 were enacted. Rules 413-415 were enacted as part of the Violent Crime Control and Law Enforcement Act of 1994. In August 1994, New York Republican Representative Susan Molinari blocked the Clinton crime bill unless the bill included Rules 413-415. To get Molinari's vote, the Democrats agreed to include the rules of evidence in the crime bill they desperately wanted to get passed before the upcoming elections.


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Committee members stated Rule 404, N.D.R.Evid., adequately governs the admission of previous wrongs. Under Rule 404, prior acts are admissible for independent purposes such as plan, motive, and absence of mistake. The Committee was concerned under proposed Rules 413-415, criminal defendants would be convicted for previous bad acts rather than the crime charged. The Committee was also concerned about mini trials occurring within trials. The rule makes previous bad acts admissible even though the previous bad acts were not the subject of a conviction.

Judge Hagerty MOVED to reject proposed Rules 413-415. Judge Leclerc seconded. Motion CARRIED. Committee requested staff to report back in a year as to whether any other states have adopted Rules 413-415.

RULE 32, N.D.R.Crim.P. - SENTENCE AND JUDGMENT (PAGES 69-83 OF THE AGENDA MATERIAL).

At the last meeting, the Committee questioned why the provision in Rule 32 which provided for confidentiality of presentence investigation reports had been removed. Staff explained, the Committee had voted at the October 1990 meeting to eliminate the provision which provided for confidentiality to follow the 1989 federal amendment.

The provision had provided confidentiality by requiring the presentence investigation report to be returned and by prohibiting copies from being made. The 1972 minutes of the Joint Committee on the Rules of Criminal Procedure indicate the purpose of the provision requiring return of the reports was to maintain secrecy.

At the October 1990 meeting, the reasons given for eliminating the provision were from the Federal Advisory Committee Notes as follows: 1) the presentence investigation report may be needed in preparation of an appeal; 2) people can get copies of the report through the Freedom of Information Act; and 3) no public interest is served by requiring return of the reports. The Committee stated, those reasons may be more relevant to federal practice than North Dakota practice.

The Committee reviewed Section 12-59-04, N.D.C.C. The intent of the statute is to keep presentence investigation reports confidential. However, Committee members thought the statute only governed the State Parole Board. They did not think the statute governed disclosure of presentence investigation reports under the control of the court. Others disagreed.

Judges stated eliminating the provision, requiring return of the report and prohibiting copies, created the impression the report is not confidential. Committee members suggested the rule


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should have a provision more specifically addressing confidentiality. Once the court has the presentence investigation report nothing in the rule prevents the presentence investigation report from becoming a public record. The rule does not specifically address whether the report is confidential.

The Committee noted the public records law, Section 44-04-18, N.D.C.C., is not applicable to the courts. Proposed Administrative Rule 41 governs access to judicial records and provides presentence investigation reports are confidential and exempt from disclosure as provided in Rule 32(c). Committee members suggested Rule 32 needs to be amended to clarify whether and when presentence investigation reports are confidential.

Committee discussion revealed different judges treat presentence investigation reports differently. Some judges require people to return copies of the report. Others judges seal portions of the report.

The Committee noted there are different levels of presentence investigation reports. For instance a level 1 presentence investigation report contains basic information. There is no need for it to be confidential. Not all portions of a presentence investigation report should remain sealed. The public should know the factors upon which a sentence is based. Also, a judge may have considered something inappropriate. However, reports containing mental health evaluations and victim impact statements may need to remain confidential. Victims of sexual offenses do not want their statement put in the paper.

Committee members suggested there should be standard presentence investigation reports that are public. Other sensitive material should be marked by the Division of Parole and Probation and the judge should determine whether that portion should remain sealed or open to the public. The Committee suggested inviting the Department of Corrections and Rehabilitation to comment regarding the confidentiality of presentence investigation reports.

Committee members stated the federal rule works well. The defendant is allowed a copy of the presentence investigation report and the defendant gets to keep his copy. The federal rule also provides for exclusion of sensitive material from the presentence investigation report.

Committee members suggested comments should be solicited from other interested groups. Others stated it is generally the policy of this Committee not to solicit comments. Still others suggested the Division of Parole and Probation needs to be consulted because they are the ones who created the definition for level 1, 2, and 3 presentence investigation reports. The definition may be helpful in formulating a rule as to which types of reports should remain confidential.


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Judge Hunke MOVED to postpone consideration of Rule 32 until the next meeting. Staff is to gather additional information for the Committee's consideration. Mr. Kapsner seconded. Motion CARRIED.

Committee members commented, the old provision regarding copies did not really address the issue of confidentiality. Others stated the provision had value because it prevented the prosecution and the defendant from distributing copies.

RULE 43, N.D.R.Crim.P. - PRESENCE OF THE DEFENDANT (PAGES 84-93 OF THE AGENDA MATERIAL).

Staff gave an overview of proposed Rule 43 on page 88. The proposal incorporates both the 1975 and 1995 federal amendment. The 1975 amendment was included because the Committee never considered the 1975 federal amendment.

The 1975 amendment clarifies if a defendant is voluntarily absent from trial after initially being present, the absence will be considered a waiver of the right to be present. The waiver of the right to be present will also be assumed even if the defendant has not been informed by the court of the obligation to remain during trial.

The 1995 amendment to subdivision (b) allows the court to sentence a defendant who flees before sentence is imposed. Currently the rule is unclear as to whether the court can sentence a defendant who is initially present but flees before sentencing.

Proposed subdivision (c) contains several amendments. The types of organizational defendants not required to be present is expanded. An amendment provides a defendant need not be present when the proceeding involves only a question of law. Finally, an amendment provides the defendant need not be present when the proceeding involves a correction of sentence.

Committee members argued the provisions are necessary to prevent a defendant from obstructing the progress of a trial by fleeing when the defendant suspects the jury will return a guilty verdict.

Members thought defendants should be required to be at trial. Others clarified, the rule does not give the defendant a right not to be present. Instead, the rule permits the court to go ahead if the defendant violates the obligation to be present.

Committee members argued an absent defendant should not be sentenced. The judge should issue a bench warrant for the arrest of the defendant who flees. The defendant may have evidence he could present in mitigation of the sentence. Also, if the court


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sentences an absent defendant, the defendant may loss the right to appeal because the time for appeal may expire during the defendant's absence.

Others argued the defendant has no cause to complain when the defendant voluntarily fails to appear for sentencing. Courts need to be able to close cases. For the purpose of apprehending the defendant, and to get cooperation from other states, it is important to have a conviction and a sentence. Others also noted, the defendant's attorney could appeal the sentence imposed in the defendant's absence.

In subdivision (c)(4), the Committee stated the provision should provide a defendant is not required to be present at a correction or reduction of sentence. By unanimous agreement, the Committee decided subdivision (c)(4) should provide as follows: "(4) when the proceeding involves a correction or reduction of sentence under Rule 35." Bringing the defendant before the court every time a defendant makes a motion for reduction would be burdensome. Rule 35, Fed.R.Crim.P., is different because only the government can make a motion for reduction. The potential for abuse does not exist.

The Committee noted subdivision (c)(2) is discretionary with the court. The court can require the defendant to appear in person in misdemeanor cases. The Committee then questioned whether the court has discretion to require a corporation to appear personally. The Committee noted paragraph (1) does not have the discretionary language contained in paragraph (2). Others stated the introductory language of subdivision (c); that is, "A defendant need not be present" does not create a right not to be present.

To clarify a court may require the presence of a defendant, Mr. Kapsner MOVED to amend subdivision (c) to provide as follows: "Unless otherwise ordered by the court, a defendant need not be present: . . . (2) when the offense is punishable by fine or by imprisonment for not more than 1 year or both with the written consent of the defendant;". Judge Hunke seconded.

Committee members argued Mr. Kapsner's proposed amendment would mean the court would have to issue an order to get the defendant to appear. It was suggested the phrase "unless application is made to the court" be used instead of the phrase "unless otherwise ordered by the court." Mr. Kapsner withdrew his motion because the proposed language had become to confused. The Committee was unsure what the language should be in order to clarify the court has discretion under all the categories of subdivision (c) to require the presence of the defendant.

The Committee reviewed the proposed amendment to subdivision (c)(1) which provides a defendant need not be present when represented by counsel and the defendant is an organization,


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not an individual. The Committee questioned the definition of organization. The proposal is patterned after the federal rule which contains a reference to 18 U.S.C. 18. The code provision defines organization as a person other than an individual.

On line 14, Mr. McLean MOVED to add the language from the federal rule which provides as follows: "initially present at trial, or having pleaded guilty." Judge Hunke seconded. Motion CARRIED. The federal language is needed to cover the defendant who pleads guilty and then flees before sentencing. The court needs to be able to sentence a defendant who is initially present and pleads guilty. Without the language, North Dakota's rule could be interpreted as only allowing the court to sentence a defendant who is initially present at trial.

Mr. Kapsner MOVED to delete lines 28-29 which allow a corporation to appear through counsel. Ms. Moore seconded. Committee members argued special privileges should not be afforded corporations. Someone from the corporation should have to stand before the court. The Motion failed by a vote of seven in favor, nine opposed.

Judge Hunke MOVED to adopt the proposed rule with the amendments made by the Committee. The motion was seconded. Motion CARRIED.

Judge Hunke MOVED to postpone consideration of the explanatory note until the next meeting. For the next meeting, staff is to include an explanation in the note clarifying a defendant does not have a right to be absent under subdivision (c). The court has discretion to require the presence of the defendant. Judge Leclerc seconded the motion. Motion CARRIED.

The meeting recessed at 4:00 p.m.

SEPTEMBER 27, 1996 - FRIDAY

The meeting reconvened at approximately 9:00 a.m.

RULES 50, 52, AND 59, N.D.R.Civ.P. - POST-JUDGMENT MOTIONS (PAGES 94-110 OF THE AGENDA MATERIAL).

Staff explained, Rules 50, 52, and 59, Fed.R.Civ.P., were amended, effective December 1, 1995, to provide a consistent uniform measure for determining when post-judgment motions must be made. Prior to the 1995 amendment, the federal rules were inconsistent as to whether a post-judgment motion must be "served," "made" or "filed" not later than 10 days after entry of judgment. After the 1995 amendment, the federal rules require post-judgment


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motions to be "filed" not later than 10 days after entry of judgment.

On pages 100-102, the Committee considered the proposed amendment to Rule 50. Committee members questioned why the language in subdivision (c) was eliminated which provided for conditionally granting a new trial in conjunction with a motion for j.n.o.v. It was explained the change was made as a matter of style. Committee members said the language needs to remain in the rule, so it is clear a motion for a new trial in conjunction with a motion for j.n.o.v. is a conditional grant or denial, for the purpose of preventing bifurcated appeals. By consensus, the Committee agreed to reinsert the language eliminated to provide for conditional rulings.

Committee members argued the operative date should be "service" rather than "filing." Committee members commented if "filing" is the operative date you really do not get 10 days. Time has to be allotted for mailing, because filing is not complete upon mailing. The problem is that unless filing is done by physical delivery, an attorney does not know when filing occurs. However, an attorney does know the time when service occurs. The Committee noted the operative date for appeal is when the notice of appeal is filed.

The Committee noted, under Rule 6(a), Fed.R.Civ.P., intermediate Saturdays, Sundays and legal holidays are not counted when the period of time is less than 11 days. Under Rule 6(a), N.D.R.Civ.P., intermediate Saturdays, Sundays, and legal holidays are not counted unless the period is less than 7 days. Thus, under the federal rules, a party has more time to make a motion for a new trial than under North Dakota's rules, because under the federal rules intermediate Saturdays, Sundays and legal holidays are not counted.

Mr. Kapsner MOVED to amend lines 13 and 56 of Rule 50 to provide for "service" as the operative date rather than "filing." Mr. McLean seconded.

Other Committee members argued the rule should require both "service" and "filing." If just "service" is required, for strategic purposes, parties will serve the motion but not file the motion with the court. If just "filing" is specified, some people will not serve the documents. The rule should require both "service" and "filing." It was suggested 15 days should be allowed if both service and filing is required to allow more time for making a motion for a new trial. Mr. Kapsner withdrew his motion.

Judge Smith MOVED to amend Rule 50 to provide for "service" and "filing" and to change the time frames in the rule from 10 to 15 days. Ms. Schmitz seconded. The Committee noted proof of service will need to be filed with the motion so the court


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will know whether service was timely. Both service and filing will have to occur not later than 15 days after notice of entry of judgment. Motion CARRIED.

The Committee considered the proposed amendment to Rule 52 on pages 106-107. Judge Smith MOVED to amend Rule 52 to require both "service" and "filing" and to change the time frame from 10 to 15 days for making a motion for amended findings. Ms. Schmitz seconded. Motion CARRIED.

The Committee considered the proposed amendment to Rule 59 on pages 109-110. On line 14, the Committee instructed staff to delete the comma after the word "court" and to insert a comma after the word "judgment." Committee members questioned the discrepancy between subdivision (c) and subdivision (i). Under subdivision (c), a party has 60 days to move for a new trial. Under subdivision (i), the court only has 10 days to order a new trial on its own initiative.

On line 13, Mr. McLean MOVED to extend the time for granting a new trial on the court's own initiative from 10 days to 60 days. Judge Smith seconded. Motion FAILED.

The Committee noted the discrepancy between Rule 50 and Rule 59. Under Rule 50, if a party moves for j.n.o.v., the motion for new trial must be made within 15 days. If a party does not move for j.n.o.v., the party has 60 days to make a motion for a new trial. The Committee noted this discrepancy was carried over from Section 28-1903, N.D.R.C. 1943.

Judge Smith MOVED to amend Rule 59 by requiring "service" and "filing" and by changing the time frame in line 13 from 10 to 15 days for granting a new trial on the court's own initiative. Ms. Schmitz seconded. Motion CARRIED.

EXPLANATORY NOTES - RULES 17.1 AND 33, N.D.R.Crim.P. (PAGES 111-122 OF THE AGENDA MATERIAL).

The Committee considered the explanatory note Rule 17.1, N.D.R.Crim.P. The amendment deletes most of the explanatory note. The explanatory note is simply explaining how the omnibus hearing changed practice in 1973 when the rule was adopted.

Professor Kraft MOVED to adopt the explanatory note to Rule 17.1 as proposed. Judge Leclerc seconded. Motion CARRIED.

Next, the Committee reviewed the amendment to the explanatory note to Rule 33, N.D.R.Crim.P. Committee members stated, it is helpful to have some explanation as to why a rule was adopted. Others stated, the information is in the minutes. Committee members questioned whether the minutes could be on the


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Supreme Court web site, so all lawyers would have access to the minutes. The minutes go back to approximately 1967. Justice Sandstrom stated, scanning in all of the old minutes would be a big project.

Judge Leclerc MOVED to adopt the explanatory note to Rule 33 as proposed. Professor Kraft seconded. Motion CARRIED.

RULE 804, N.D.R.Evid. - HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE (PAGES 123-133 OF THE AGENDA MATERIAL).

Judge Hagerty explained a proposal she had gotten from Eugene Burdick to amend Rule 804. Burdick is proposing a hearsay exception to allow admission of a statement of an unavailable declarant, when the statement implicates the defendant in criminal behavior harmful to the declarant or in which the declarant apprehends such behavior by the defendant. The proposed amendment would make diary entries admissible in a murder trial.

The Committee questioned whether diary entries are trustworthy. The Committee noted Burdick's letter in which he states the trustworthiness or safety factor lies in the fact statements of this character are not likely to be made lightly, because of the degree of humiliation or embarrassment involved in acknowledging abuse behavior by one's spouse.

Committee members thought just the opposite is true. Diary entries are likely to contain unreliable and distorted information. Diaries are often written in exaggerated unreliable terms for therapeutic reasons. Diary entries are not accurate factual accounts. For example, on a particular day a frustrated mother might write in her diary she wished she had never had children. Ultimately, this is not what she really means.

The Committee noted the exception does not limit statements to diary entries. The declarant could make the statement to another person such as a social worker or a friend. A murderer could make the victim write information down immediately before committing the murder, and the information would be admissible under the proposed exception.

Committee members expressed concern about the lack of time constraints. For instance, a diary entry written 30 years before the alleged crime should not be admissible. If the diary entry is written immediately before the alleged crime, the diary entry may already be admissible under the hearsay catch-all exception. An additional hearsay exception is not needed.

The Committee questioned the meaning of the words "criminal behavior harmful to the declarant." The Committee noted the rule is not limited to statements about violent behavior. The


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statements could be used to prosecute a defendant regarding any crime if the criminal behavior was harmful to the declarant. Arguably, any criminal behavior by a spouse is potentially harmful to the other spouse.

Committee members stated, if one assumes the defendant is innocent, such statements are highly prejudicial. There may be no nexus between a prior statement and a particular crime. Others stated the jury could weigh the probative value of the hearsay statement. Others argued, it is unfair to have the jury weighing evidence without the benefit of cross-examination.

Judge Hagerty MOVED to adopt proposed Rule 804. Mr. McLean seconded. Only two members voted in favor of the proposal. Motion FAILED.

The Committee considered the proposed explanatory note to Rule 804 on pages 130-133. Professor Kraft MOVED to adopt the proposed explanatory note with the exception lines 135-143 be retained. Ms. Schmitz seconded. Motion CARRIED.

RULE 4, N.D.R.Civ.P. - PERSONS SUBJECT TO JURISDICTION--PROCESS--SERVICE (PAGES 134-138 OF THE AGENDA MATERIAL).

Previously, the Committee expressed concern about the situation when the defendant wants the action filed, but the plaintiff has not filed the complaint. Committee members thought it unfair for a defendant to have to pay the plaintiff's filing fee to get the case filed.

Staff explained the proposed amendment to Rule 4 provides the defendant may serve a written demand upon the plaintiff to file a complaint. The purpose of the amendment is to prevent the defendant from having to pay the filing fee to get the case filed. The amendment was put in Rule 4 because the preceding paragraph pertains to a demand for service of the complaint. The new paragraph pertains to a demand for filing the complaint.

Committee members expressed concern about respecting the privacy of plaintiffs. A defendant should not have the power to require the plaintiff to file the action. Others stated, providing the defendant with a mechanism for getting the action filed will prevent plaintiffs from filing frivolous harassment cases. Currently, the system puts the plaintiff at an advantage.

Members stated the proposal also protects defendants. For example, pro se litigants will file medical malpractice actions without retaining any expert. Some judges will say the ninety day period for obtaining an expert does not begin unless the case is filed. SeeSection 28-01-46, N.D.C.C. Defendants need a means for


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getting an action filed. Also, a defendant cannot issue a subpoena until the action is filed.

Committee members noted the procedure does not require court involvement. If the plaintiff does not file the complaint within twenty days after service of the demand, service of the summons is void. It is not necessary to get a court order or judgment.

Committee members argued the sanction is too harsh. The sanction is not commensurate with the degree of harm. The defendant is only temporarily out the cost of paying the plaintiff's filing fee. The costs of paying the filing fee can later be awarded as costs. The sanction is draconian. If the statute of limitations runs, the complainant will loss its cause. The plaintiff will not be able to start the action over.

Others stated, they liked the sanction. It is unfair to make a defendant pay the filing fee when the defendant may not have economic resources equal to the plaintiff. Defendants can only hope they will eventually get reimbursed for paying the filing fee. The plaintiff is the one bring the action. The plaintiff should be forced to pay the filing fee. The proposal provides a better alternative than commencement by filing. It was suggested language should be included in the demand for filing the complaint that a failure to file will result in service of the summons being void.

Committee members noted the sanction is equally severe when the plaintiff does not serve the complaint after being served with a demand for service of the complaint.

On page 135, Committee members suggested the language in the last sentence should be as follows: "If the plaintiff does not file the complaint within 20 days after service of the demand, service of the summons is void." The phrase "service of" is added to make it clear the summons could be served again if the statute of limitations has not run.

The Committee questioned what happens if the plaintiff files the complaint later than twenty days after service of the demand. The response was the situation would be no different than if someone files an action without properly serving the defendant.

The Committee questioned whether the rule should provide the defendant with the option of paying the plaintiff's filing fee. The defendant may want the action filed, rather than having service of the summons voided. For instance, the defendant may have a strong counterclaim. Members stated, the rule does not prevent the defendant from paying the filing fee if the defendant wants the action filed for the purpose of getting a judgment. The proposal gives the defendant two options. The defendant can pay


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the plaintiff's filing fee or demand the plaintiff to file the complaint.

Committee members suggested adding an additional paragraph to Rule 4 to make it clear the defendant can pay the plaintiff's filing fee. Judge Smith MOVED to add the following language: "(4) The defendant may file the summons and complaint, and the costs incurred on behalf of the plaintiff may be taxed as provided in Rule 54(e)." Mr. McLean seconded. Motion CARRIED. The Committee noted the defendant would have to file a copy of the complaint, because the plaintiff will have the original.

Mr. Kapsner MOVED to adopt proposed Rule 4. The language in the last sentence of paragraph 3 should provide: "If the plaintiff does not file the complaint within 20 days after service of the demand, service of the summons is void." Professor Kraft seconded. The Motion CARRIED by a vote of 9 to 5.

The Committee discussed whether Rule 4 should come back at the next meeting for further consideration. Some members spoke against requiring a two-thirds vote to pass a rule. Members expressed concern the Committee would never get anything done. It was explained that at a second hearing of a proposal, the vote would only need to be a majority of the quorum present. Others stated, the Committee has significant notice of meetings. People need to be present and prepared at meetings. Still others said, consideration at two meetings is appropriate. It is too easy to make a mistake when a rule is only considered at one meeting. Others suggested a two-thirds vote should only be required when the Committee is considering an extensive amendment, complicated material or new controversial material.

The Committee decided not to cast the two-thirds rule in stone, but to consider Rule 4 again at the next meeting.

RULE 5, N.D.R.Civ.P. - SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS (PAGES 139-143 OF THE AGENDA MATERIAL).

Staff explained, the proposed amendment achieves consistency with Rule 45, N.D.R.Civ.P., by requiring the complaint to be filed before a subpoena may be issued. Rule 45 requires a subpoena to contain the civil action number of the case.

The proposed amendment to Rule 5 also requires the plaintiff to serve notice of filing the complaint upon the defendant, so the defendant will know when the plaintiff has filed the complaint. Finally, the proposal requires the defendant to file an answer within a reasonable time after service of notice of filing the complaint. The purpose of the amendment is to expedite filing of the answer.


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Committee members questioned whether the rule should require the answer to be filed within a reasonable time or a specific number of days. Committee members were concerned about defining a reasonable time. Others said, filing within a "reasonable time" provides more flexibility. The rationale for requiring an answer to be filed within a "reasonable time" is to avoid creating another specific deadline for attorneys. The Committee noted Rule 5(d), Fed.R.Civ.P., provides for filing within a reasonable time after service.

The Committee questioned whether a provision is needed requiring the defendant to file the answer. Judges stated the language is needed, because answers are often not filed until trial. If the answer is not filed, the judge may not know a demand for a jury trial has been made.

Committee members suggested the amendment should require both the summons and complaint to be filed before a subpoena may be issued. Service of a summons is what commences an action. Others stated, only the summons should be required to be filed to preserve confidentiality. Judges stated, they need to have the pleadings filed in order to know whether the subpoena should be issued.

The Committee stated this amendment, and the previous amendment to Rule 45, allows the court to become involved by requiring filing of those cases that really are going to be litigated. Cases will not be filed where the parties really are negotiating settlement, and there is not a need for court involvement.

Judge Foughty MOVED to amend the language on line 5 to require both the summons and complaint to be filed. Mr. Kapsner seconded. Motion CARRIED.

Judge Smith MOVED to amend Rule 5 by providing: "The defendant seeking a subpoena shall file an answer within a reasonable time after service of notice of filing the complaint and before issuance of a subpoena." Motion FAILED for lack of a second.

Professor Kraft MOVED to adopt Rule 5. Ms. Schmitz seconded. Motion CARRIED unanimously. The Committee noted the practical effect of this amendment is to require another document; that is, a notice of filing a complaint. The document is analogous to other notices such as a notice of motion or notice of deposition.


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RULE 2.1, N.D.R.App.P. - MENTAL HEALTH APPEALS (PAGES 158-163 OF THE AGENDA MATERIAL).

Because the Committee was running out of time, the Committee moved ahead to cover several proposals that could be done quickly or were more urgent.

Justice Sandstrom explained a problem exists in mental health appeals. The district court may refuse a stay of an order for involuntary medication. The appellant may want to immediately appeal for the purpose of getting a stay, but may not be immediately prepared to file a brief. Currently, the rule requires a brief to be filed with the notice of appeal. If a brief is not filed with the notice of appeal, the appellee will argue they were denied reasonable notice of the grounds for appeal.

The proposal solves the problem by allowing a notice of appeal to be filed without a brief if a motion for stay is filed with the notice of appeal. Instead of requiring briefs to be filed with the notice of appeal, the proposal requires specifications of error to be filed with the notice of appeal so the appellee will at least have notice of the grounds for appeal.

Judges commented mental health appeals are really a serious matter. Medication may have significant side affects. There ought to be a way the Supreme Court can have meaningful review by issuing an order for an immediate stay.

Judge Leclerc MOVED to adopt proposed Rule 2.1. Ms. Schmitz seconded. Motion CARRIED.

RULE 10, N.D.R.App.P. - TRANSCRIPT ON DISK (PAGES 180-188 OF THE AGENDA MATERIAL).

The proposed amendment to Rule 10 requires a copy of the transcript to be filed on diskette in addition to the other copies. It was explained, having the transcript on diskette would be useful for searching the record. The cost of furnishing the transcript on diskette would be minimal, because the copy on diskette would simply be an additional copy of the transcript. Currently, court reporters will sell a copy of the transcript on diskette to the attorney requesting the transcript. Regardless whether the transcript is electronically or stenographically recorded, the transcript is prepared on a computer.

Ms. Schmitz MOVED to adopt Rule 10 as proposed. Mr. Lamb seconded. Motion CARRIED. The Committee noted the Council of Presiding Judges is reviewing the process for preparing transcripts.


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RULE 30, N.D.R.App.P. - APPENDIX TO THE BRIEFS (PAGES 189-192 OF AGENDA MATERIAL).

The proposed amendment requires the agency docket sheet to be included in the appendix. The agency docket sheet makes it easier to locate documents.

Judges questioned the purpose of having agency appeals heard by the district court. It was explained, having the district court hear agency appeals before the Supreme Court serves a valuable screening function. Many agency decisions are not appealed beyond the district court level.

Mr. McLean MOVED to adopt proposed Rule 30. Ms. Schmitz seconded. Motion CARRIED.

PROPOSED RULE 6.7, N.D.R.O.C. - JURY NOTE TAKING (PAGES 218-224 OF THE AGENDA MATERIAL).

The Committee considered a proposal to allow note taking by the jury in both civil and criminal cases. The Committee noted, for over twenty years Arizona has allowed jury note taking in criminal trials. The Arizona Supreme Court reports jury note taking works well. Note taking aids a juror's memory and helps the juror stay focused on the testimony being given.

The Committee also noted, Minnesota has a rule allowing jurors to take notes in civil cases. The jurors are supplied with note pads. In federal court, Judge Web allows jurors to take notes. A cautionary instruction is given advising the jurors to rely on their memory and not to take excessive notes. The Committee also noted North Dakota judges will sometimes allow note taking.

The proposed rule is not mandatory. The judge has discretion whether to allow note taking.

The Committee questioned whether on voir dire a secretary could be excluded from the jury if the secretary was capable of taking a verbatim transcript. The secretary would have power to dominate the jury. Committee members argued note taking is useful. Judges and attorneys take notes. The jury should also be allowed to take notes.

Mr. McLean MOVED to adopt proposed Rule 6.7. Ms. Schmitz seconded. Motion CARRIED.

The Committee instructed staff to replace the hyphen in the proposed rule with a space.


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RULE 38, N.D.R.Civ.P. - JURY TRIAL OF RIGHT (PAGES 144-148 OF THE AGENDA MATERIAL).

Staff explained Rule 38, Fed.R.Civ.P., was amended in 1993 to clarify a demand for a jury trial must be filed. To clarify the demand for jury trial must be filed, the provision requiring the demand to be filed was moved from the subdivision on "waiver" to the subdivision on "demand." The proposed amendment tracks the federal rule.

Committee members questioned whether the demand must be filed not later than ten days after service of the last pleading. Only service of the demand is required not later than 10 days after service of the last pleading directed to the issue. The Committee stated Rule 5(d) governs when the demand must be filed.

Mr. Lamb MOVED to adopt proposed Rule 38 and the explanatory note. Judge Leclerc seconded. Motion CARRIED.

RULE 5, N.D.R.Civ.P. - SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS (PAGES 149-157 OF THE AGENDA MATERIAL).

Staff explained, the Supreme Court had asked the Committee to consider a rule amendment making it more obvious documents submitted to the court must be served on the other parties. The Committee noted, in 1993 it had approved an amendment to Rule 7.1 which requires proposed orders and findings to be served on the other parties. The problem is people are unaware of the requirement in Rule 7.1, N.D.R.O.C.

Some Committee members questioned whether the proposed amendment should cover proposed orders. The Committee stated filing a proposed order without serving the proposed order upon the other parties would be an impermissible ex parte contact. The amendment does not require the court to wait for a response from the other side before entering judgment. The amendment simply clarifies ex parte submission of proposed orders is not permissible.

The Committee voted to adopt the proposed amendment on page 153.

The meeting adjourned at approximately 12:00 p.m.

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Gerhard Raedeke