Joint Procedure Committee Meeting

Scheduled on Thursday, September 30, 1982 @ 10:00 AM

MINUTES OF MEETING

Joint Procedure Committee

September 30 - October 1, 1982

CALL TO ORDER

The meeting was called to order at 9:00 a.m., September 30, 1982, by Justice Paul M. Sand, Chairman.

ATTENDANCE

Present

Hon. Eugene A. Burdick
Hon. Frank J. Kosanda
Hon. Lawrence A. LeClerc
Hon. William S. Murray
Mr. Leonard Bucklin (9:35)
Mr. William A. Hill
Mr. Ward M. Kirby (1:15)
Mr. Larry Kraft
Mr. James L. Lamb
Mr. LeRoy A. Loder

Absent

Hon. Gerald G. Glaser
Hon. Robert C. Heinley
Hon. James H. O'Keefe
Hon. Kirk Smith
Hon. Robert Vogel
Mr. Richard A. McKennett
Mr. Herbert L. Meschke
Mr. Russell G. Nerison
Mr. David L. Peterson

APPROVAL OF MINUTES

Judge LeClerc MOVED that the Minutes be approved as submitted. Judge Kosanda seconded the motion. Motion CARRIED.

RULE 71A, FRCivP

Judge Burdick MOVED that the staff attorney draft a proposal to allow parties the option of using a commission, similar to a Rule 71A, FRCivP, commission, in condemnation cases. Judge Murray seconded the motion. Motion CARRIED.

RULE 54(e), NDRCivP

Judge Burdick MOVED to adopt the concept of draft 2 of Rule 54(e), NDRCivP. Mr. Hill seconded the motion. Motion CARRIED.

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Judge Burdick MOVED to amend the proposed Rule 54(e), NDRCivP, as follows:

Lines 39 and 40: Retain "(e) Costs. Costs and disbursements shall be allowed as provided by statute."

Amend lines 51 through 69 to read as follows: "A party awarded costs and disbursements shall submit to the clerk a detailed, verified statement thereof. Upon receipt of the statement, the clerk shall allow those costs and disbursements and insert them in the judgment. A copy of the statement must accompany the notice of entry of judgment. Objections must be served and filed with the clerk, either within 7 days after notice of entry of judgment or within such longer time the court may fix by order made within the 7 days. Objections must specify the ground thereof. If objections are filed, the clerk shall promptly submit them to the judge who ordered the judgment. The court by ex parte order shall fix a time for hearing the objections. Unless otherwise directed by the court, the parties may waive the right to hearing and submit written argument in lieu thereof within the time specified by the court."

Judge Kosanda seconded the motion. Motion CARRIED.

Mr. Lamb MOVED the adoption of Rule 54, NDRCivP, as amended. Mr. Kosanda seconded the motion. Motion CARRIED.

RULE 54

JUDGMENT - COSTS

(a) Definition - Form. "Judgment" as used in these rules includes a decree and any order from which an appeal lies. A judgment shall not contain a recital of pleadings, the report of a master, or the record of prior proceedings.

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counter claim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all, of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims

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or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

(c) Demand for Judgment. A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.

(d) Death Before Judgment. If a party dies after a verdict or decision upon any issue of fact and before judgment, the court nevertheless may render judgment thereon. Such judgment is not a lien on the real property of the deceased party, but is payable as provided in Chapter 30.1-19, NDCC.

(e) Costs. Costs and disbursements shall be allowed as provided by statute. A party awarded costs and disbursements shall submit to the clerk a detailed, verified statement thereof. Upon receipt of the statement, the clerk shall allow those costs and disbursements and insert them in the judgment. A copy of the statement must accompany the notice of entry of judgment. Objections must be served and filed with the clerk, either within 7 days after notice of entry of judgment or within such longer time the court may fix by order made within the 7 days. Objections must specify the ground thereof. If objections are filed, the clerk shall promptly submit them to the judge who ordered the judgment. The court by ex parte order shall fix a time for hearing the objections. Unless otherwise directed by the court, the parties may waive the right to hearing and submit written argument in lieu thereof within the time specified by the court.

RULE 16, NDRCrimP

The Committee discussed proposed draft 5 of Rule 16, NDRCrimP.

RECESS

The Committee recessed to 1:15 p.m.

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CALL TO ORDER

The Committee was called to order at 1:15 p.m. September 30, 1982, by Justice Paul M. Sand, Chairman.

Mr. Ward M. Kirby joined the meeting at this time.

RULE 16, NDRCrimP

Judge Burdick MOVED to delete the words "or by the exercise of due diligence may become known," in lines 115 and 116 of draft 5 of Rule 16, NDRCrimP. Mr. Kirby seconded the motion. Motion CARRIED.

Judge Kosanda MOVED to amend line 108, subdivision G of draft 5 of Rule 16, NDRCrimP, by inserting "Other Than Codefendants Or Defendant" after the word "Persons." Mr. Loder seconded the motion. Motion CARRIED.

Mr. Hill MOVED to delete lines 153 through 165 of proposed draft 5, Rule 16 (a)(1)(K). Mr. Loder seconded the motion. Motion CARRIED.

Mr. Hill MOVED to delete lines 166 through 176 of draft 5 of Rule 16, NDRCrimP. Mr. Lamb seconded the motion. Motion LOST.

Judge Kosanda MOVED to delete lines 262 through 277 of proposed draft 5, Rule 16, NDRCrimP. Mr. Kirby seconded the motion. Motion CARRIED.

Judge Burdick suggested that the concept of Rule 422(a), Uniform Rules of Criminal Procedure (1974), be included as an additional section of Rule 16, NDRCrimP.

Judge Burdick MOVED to adopt the concept of proposed draft 5 of Rule 16, NDRCrimP. Mr. Lamb seconded the motion. Motion LOST.

Mr. Hill MOVED to adopt the concept of proposed draft 2 of Rule 16, NDRCrimP. Judge LeClerc seconded the motion. Motion CARRIED.

Judge Burdick MOVED to substitute for paragraph (f)(1) of draft 2 of Rule 16, NDRCrimP, the names of witnesses and statements they have made and statements of codefendants and others (subparagraphs E, F and G) of draft 5 of Rule 16, NDRCrimP, as found on pages 161 and 162, and make it available at any point prior to trial, and save the definitions in paragraph (f) of draft 2. Mr. Loder seconded the motion. Motion CARRIED.

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NEXT MEETING

The next meeting of the Joint Procedure Committee will be on November 18 and 19, commencing at 9:00 a.m. on the 18th and continuing to 12:00 on November 19.

RECESS

The meeting recessed to 9:00 a.m., October 1, 1982.

CALL TO ORDER

The meeting was called to order at 9:00 a.m., October 1, 1982, by Justice Paul M. Sand, Chairman.

ATTENDANCE

Hon. Eugene A. Burdick

Hon. Frank J. Kosanda

Hon. Lawrence A. LeClerc

Hon. William S. Murray

Mr. William A. Hill

Mr. Ward M. Kirby

Mr. Larry Kraft

Mr. James L. Lamb

Mr. LeRoy A. Loder

RULE 16, NDRCrimP

The Committee adopted the cross reference to Rule 612, NDREv in the explanatory note to Rule 16, NDRCrimP.

Judge Burdick MOVED to direct the staff attorney to include in the redraft of Rule 16, draft 2, the additional provision for sanctions relieving the party who makes the request from any disclosure required until the request is complied with, taken from Rule 422(c), Uniform Rules of Criminal Procedure (1974). This would be added into page 130, subdivision 2, beginning on line 170. This is also found in Rule 421(e), URCrimP. Judge Kosanda seconded the motion. Motion CARRIED.

Judge Burdick MOVED to direct the staff attorney to redraft Rule 16, NDRCrimP, draft 2, with a section of subsection, to incorporate the substance of the provisions of Rule 422(a), URCrimP, which requires the prosecuting attorney to furnish to the defendant a number of items without a request from the defendant. One is a statement describing any testimony or other evidence intended to be used against the defendant which was obtained as a result of search and seizure, wiretapping, or any form of electronic or other eavesdropping; or which consists of or resulted from any confession, admission, or statement made by the defendant; or which relates to a lineup, showup, picture, or voice identification of the defendant, and informing the defendant

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that if he contends that any of the evidence is subject to suppression under Rule 461 that he must move the court, by a specified time set by the court, to suppress the evidence. Secondly, he must furnish a statement describing any confession, admission, or statement of a codefendant intended to be used at the trial, and render a statement precisely describing any offense which the prosecuting attorney intends to show as part of the proof that the defendant committed the offense charged, if the defendant has not been prosecuted for the offense and the offense was allegedly committed at a time other than that of the offense charged; and furnish a statement describing any matter or information known to the prosecuting attorney which may not be known to the defendant and which tends to negate the defendant's guilt as to the offense charged or would tend to mitigate his punishment.

Mr. Kraft seconded the motion. Motion LOST.

RULES 50, 59, 60 and 62, NDRCivP

Judge Burdick MOVED to adopt the proposed amendments to Rules 50, 59, 61 and 62, NDRCivP, as follows:

Rule 50: Line 17 insert "notice of";

Line 60 insert "notice of";

Rule 59: Line 49, delete "within" and insert "not later than";

Line 50, delete "the return of the verdict or rendention of

the"

Line 51, delete "decision" and insert "notice of entry

of judgment";

Line 94 insert "notice of" before the word "entry";

Rule 60: Line 27, insert "notice that" at the beginning of the line;

Rule 62: Line 4, insert "notice of" following the word "after".

Mr. Hill seconded the motion. Motion CARRIED.

RULE 50

MOTION FOR A DIRECTED VERDICT

(a) Motion for Directed Verdict - When Made - Effect. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties

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to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.

(b) Motion for Judgment Notwithstanding the Verdict. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 10 days after notice of entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for judgment notwithstanding the verdict may be made upon the files, exhibits, and minutes of the court. Pertinent facts not a part of the minutes may be shown by affidavit. Either party may procure a complete or partial transcript of the proceedings for use upon hearing of the motion. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.

(1) If the motion for judgment notwithstanding the verdict, provided for in subdivision (b) of this rule, is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. In case the motion for a new trial has been conditionally denied, the appellee on appeal may assert

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error in that denial, and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court

(2) The party whose verdict has been set aside on motion for judgment notwithstanding the verdict may serve a motion for a new trial pursuant to Rule 59 not later than 10 days after notice of entry of the judgment notwithstanding the verdict.

(d) Same - Denial of Motion. If a motion for judgment notwithstanding the verdict is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling him to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict. If the appellate court reverses the judgment, nothing in this rule precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.

RULE 59

NEW TRIALS - AMENDMENT OF JUDGMENTS

(a) New Trial - Defined. A new trial is a reexamination of an issue of fact in the same court, after a trial and decision by a jury or court or by a referee.

(b) Causes for New Trial. The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:

1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial;

2. Misconduct of the jury, and whenever any juror has been induced to assent to any general or special verdict or to a finding on any question submitted to the jurors, by the court by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors;

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3. Accident or surprise which ordinary prudence could not have guarded against;

4. Newly discovered evidence material to the party making the application, which he could not with reasonable diligence have discovered and produced at the trial;

5. Excessive damages appearing to have been given under the influence of passion or prejudice, but when a new trial is asked for on this ground and it appears that the passion and prejudice affected only the amount of damages allowed and did not influence the findings of the jury on other issues in the case, the trial court, on hearing the motion, and the supreme court, on appeal, shall have power to order a reduction of the verdict in lieu of a new trial, or to order that a new trial be had unless the party in whose favor the verdict was given remits the excess of damages;

6. Insufficiency of the evidence to justify the verdict or other decision, or that it is against law;

7. Errors in law occurring at the trial and when required, excepted to by the party making the application; or

8. When without fault or negligence on the part of the party aggrieved, such party is unable to obtain or secure a correct and complete transcript of the testimony and instructions given and proceedings had at the trial.

(c) Time for Motion for New Trial. A motion for a new trial must be made within not later than the following time after notice of entry of judgment:

1. Upon the ground of newly discovered evidence, within 6 months; and

2. Upon any other ground, within 60 days, unless the court, for good cause shown, shall extend the time.

(d) Upon What Motion for New Trial Made. A motion for a new trial may be made upon the files, exhibits, and minutes of the court. Pertinent facts not a part of the minutes may be shown by affidavit. Either party may procure a complete or partial transcript of the proceedings for use upon the hearing of the motion.

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(e) Notice of Intention Not Required. It shall not be necessary in any case for a person intending to make a motion for a new trial to serve a notice of intention to make such motion, but a notice of hearing of the motion must be given. See Rule 6(d).

(f) Memorandum of Decision on Motion for New Trial. With all orders granting or refusing a new trial, the judge shall file a written memorandum concisely stating the different grounds on which his ruling is based, and unless the insufficiency or unsatisfactory nature of the evidence is expressly stated in such memorandum as a reason for granting the new trial, it shall be presumed, on appeal, that it was not on that ground.

(g) Verdict Vacated by Court. The verdict of a jury also may be vacated and a new trial granted by the court in which the action is pending on its own motion without the application of either of the parties, when there has been such plain disregard by the jury of the instructions of the court or of the evidence in the case as to satisfy the court that the verdict was rendered under a misapprehension of such instructions or under the influence of passion or prejudice.

(h) Upon Trial to the Court. In granting a new trial in an action tried without a jury the court, without vacating the judgment if one has been entered, may limit such trial to one or more issues or to the taking of additional testimony on one or more issues and shall confirm or amend the findings of fact and conclusions of law or make new findings and conclusions. If a judgment has been entered, it may be vacated and a new judgment entered or it may be amended to conform to the findings of fact and conclusions of law finally made by the court.

(i) On Initiative of Court. Not later than 10 days after notice of entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a motion for a new trial, timely served, for a reason not stated in the motion. In either case, the court shall specify in the order the grounds therefor.

(j) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after notice of entry of the judgment.

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RULE 60

RELIEF FROM JUDGMENT OR ORDER

(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversights or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the Supreme Court, and thereafter while the appeal is pending May be so corrected with leave of the Supreme Court.

(b) Mistakes - Inadvertence - Excusable Neglect Newly Discovered Evidence - Fraud - Etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment or order in any action or proceeding for the following reasons: (i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (iii) fraud (whether denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (iv) the judgment is void; (v) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (vi) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (i), (ii), and (iii) not more than one year after notice that the judgment or order was entered in the action or proceeding. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. Leave to make the motion need not be obtained from any appellate court except during such time as an appeal from the judgment is actually pending before such court. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Rule 4(e)(7) of these rules, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

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RULE 62

STAY OF PROCEEDINGS

TO ENFORCE A JUDGMENT

(a) Automatic Stay - Exceptions - Injunctions, Receiverships, and Accountings. Except as stated herein, no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of 10 days after notice of its entry. Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction or in a receivership action, or a judgment or order directing an accounting, shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. The provisions of subdivision (c) of this rule govern the suspending, modifying, restoring, or granting of an injunction during the pendency of an appeal.

(b) Stay on Motion for New Trial or for Judgment. In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial or to alter or amend a judgment made pursuant to Rule 59, or of a motion for relief from a judgment or order made pursuant to Rule 60, or of a motion for judgment in accordance with a motion for a directed verdict made pursuant to Rule 50, or of a motion for amendment to the findings or for additional findings made pursuant to Rule 52(b).

(c) Injunction Pending Appeal. When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.

(d) Stay Upon Appeal. When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subdivision (a) of this rule. The bond may be given at or after the time of filing the notice of appeal. The stay is effective when the supersedeas bond is approved by the court.

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(e) Stay in Favor of the State or Agency Thereof. When an appeal is taken by the state or governmental subdivision thereof or an officer or agency thereof or by direction of any department thereof and the operation or enforcement of the judgment is stayed, no bond, obligation, or other security shall be required from the appellant.

(f) Undertaking to Stay Execution for Delivery of Personalty. If the judgment appealed from directs the assignment or delivery of documents or personal property, the execution of the judgment shall not be stayed by the appeal unless the things required to be assigned or delivered are brought into court or are placed in the custody of such officer or receiver as the court shall appoint, or unless an undertaking is entered into on the part of the appellant by at least two sureties, in such sum as the court shall direct, to the effect that the appellant will obey the order of the appellate court on the appeal.

(g) To Stay Execution on Conveyance. If the judgment appealed from directs the execution of a conveyance or other instrument, the execution of the judgment shall not be stayed by the appeal, unless the instrument shall have been executed and deposited with the clerk with whom the judgment was entered to abide the judgment of the appellate court.

(h) Undertaking to Stay Execution - To Sell or Deliver Realty. If the judgment appealed from directs the sale or delivery of possession of real property, the execution of the same shall not be stayed unless an undertaking is executed on the part of the appellant by at least two sureties, in such sum as the court shall direct, to the effect that during the possession of such property by the appellant he will not commit nor suffer to be committed any waste thereon and that if the judgment is affirmed he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession thereof pursuant to the judgment.

(i) Undertaking to Stay Abatement of Nuisance. If the judgment appealed from directs the abatement or restraint of the continuance of a nuisance, either public or private, the execution of the judgment shall not be stayed by the appeal unless an undertaking is entered into on the part of the appellant by at least two sureties, in such sum as the court shall direct, to the effect that the appellant will pay all damages which the opposite party may sustain by the continuance of such nuisance.

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(j) Undertaking to Stay Other Executions. If the judgment appealed from directs the doing of any particular act or thing and no express provision is made by statute in regard to the undertaking to be given on appeal therefrom, the execution thereof shall not be Stayed by the appeal therefrom unless an undertaking is entered into on the part of the appellant, in such sum as the court shall direct, and by at least two sureties, to the effect that the appellant will pay all damages which the opposite party may have sustained by not doing the particular thing or act directed to be done by the judgment appealed from and to such further effect as such court in its discretion shall direct.

(k) To Stay Intermediate Orders. When the appeal is from an order, the execution or performance thereof shall not be delayed, except upon compliance with such conditions as the court shall direct, and, when so required, an undertaking shall be executed on the part of the appellant by at least two sureties in such sums and to such effect as the court shall direct. The effect of such undertaking shall be directed in accordance with the nature of the order appealed from, corresponding to the provisions of these rules in respect to appeals from judgments, when applicable, and such provisions shall be made in all cases as will properly protect the respondent, and no appeal from judgments, when applicable, and such provisions shall be made in all cases as will properly protect the respondent, and no appeal from an intermediate order before judgment shall stay proceedings unless the court in its discretion shall order a stay.

(1) Power of Appellate Court Not Limited. The provisions in this rule do not limit any power of an appellate court or of a judge or justice thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered.

(m) Stay of Judgment as to Multiple Claims or Multiple Parties. When a court has ordered a final judgment under the conditions stated in Rule 54(b), the court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.

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(n) Order Staying Proceedings. No order to stay proceedings for a longer time than 20 days shall be granted except to stay proceedings under an order or judgment appealed from or upon previous notice to the adverse party.

RULE 4(k), NDRCivP

Judge Burdick MOVED to adopt the proposed amendment to Rule 4(k), NDRCivP, as follows:

Line 104: Delete the line after the word "the";

Line 105: Delete the line

Line 106: Delete "constitutes delivery" and insert "addressee's refusal to accept the mail constitutes delivery. Return of the mail bearing an official indication on the cover that delivery was refused is prima facie evidence of the refusal."

Mr. Bucklin seconded the motion. Motion CARRIED.

(k) Effect of mail refusal. If a summons and complaint or other process is mailed with delivery restricted and requiring a receipt signed by the addressee, the addressee's refusal to accept the mail constitutes delivery. Return of the mail bearing an official indication on the cover that delivery was refused is prima facie evidence of the refusal.

RULE 4, NDRCivP, EXPLANATORY NOTE

Judge Burdick MOVED to adopt the proposed amendment to the explanatory note on Rule 4, NDRCivP, as follows:

Line 53: Insert "Rule 4 was again amended in 198__, effective ______________ 1983. Subdivisions(d) (2) (A) and (d)(2)(D) were amended by separating the existing methods of service into numbered methods and adding provisions for making personal service of process within the state by any form of mail addressed to the person to be served and requiring a signed receipt and resulting in delivery to that person. Subdivision (d)(3)(C) was amended to add 'to that person' and '(2) or' was added to subdivision (h)(4) to conform to the amendments to subdivision (d)(2). Subdivision (j) was amended to change last "known" post office address to last 'reasonably ascertainable' post office address to require that a person serving process not rely on a last 'known' address if a later or current address is 'reasonably ascertainable.'"

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Line 72: Delete;

Line 73: Delete "of the methods set out in subdivision (d)(3)"; delete often";

Line 74: Delete "arises" and insert "may arise"; after the word subdivision" insert "(d)(2)";

Line 75: Insert "or" at beginning of the line; delete "when" and insert "if";

Line 78: Delete "when" and insert "if";

Line 79: Insert "Subdivision (k) was added in 198__, effective ______________, 1983, to make it clear that refusal of delivery constitutes delivery."

Mr. Bucklin seconded the motion. Motion CARRIED.

EXPLANATORY NOTE

Rule 4 governs civil jurisdiction and service of process in North Dakota. Of necessity, it only slightly resembles Rule 4, FRCivP. This rule has been amended several times since its promulgation in 1957.

Originally, Rule 4 concerned process, with no mention of jurisdiction. In 1971, what are now subdivisions (a) [Definition of Person] and (b) [Jurisdiction of Person] were added. They were taken from the Uniform Interstate and International Procedure Act. Many changes were also made to subdivision (d) [previously (c)] concerning personal service, several of which were taken from that Act. Because of the addition of the above provisions, the various subdivisions were given new letter designations. A few other minor amendments were also made at that time.

Several amendments were made to this rule in 1975 [effective January 1, 1976]. The definition of a "person" [subdivision (a)] was expanded to include all fiduciaries and two or more persons having a joint or common interest. Subdivision (b)(2)(H) was added to greatly broaden jurisdiction. Subdivision (b)(5), based on the doctrine of forum non conveniens, was added at the same time. For the purpose of clarity and completeness of Rule 4, subdivisions (h)(4) and (j) were added and minor amendments were made to subdivisions (d)(2)(D), (d)(2)(G), (d)(3), (e)(6) and (h)(4). Some minor restructuring was also done to subdivisions (e)(7) through (i), basically redesignating the subdivisions.

Subdivisions (e)(1) and (e)(2) were substantially rewritten, effective January 1, 1977, to facilitate

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ease of understanding. Subdivision (e)(4) was also amended to require the mailing of the summons and complaint to the "defendant's last reasonably ascertainable post-office address."

In 1978 [effective January 1, 1979], Rule 4 was again amended. These amendments concerned the "minimum-contact" theory. In the opening provision of subdivision (b)(2), the words "having such contact with this state that the exercise of personal jurisdiction over him does not offend against traditional notions of justice or fair play or the due process of law * * *" were added. This makes it clear that personal jurisdiction must meet the minimum-contact theory as well as falling within one of the circumstances in subparagraphs A through I. Previously those same words were just a part of subparagraph (H), which was also divided into (H) and (I), and sexual intercourse added as one of the circumstances and the "any other status" restricted to "legal" status. Subdivision (e)(1)(D) was also amended by adding the qualification that "the property or credit is the subject matter of the litigation or the underlying claim for relief relates to the property or credits." This is a direct response to the holding in Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 686 (1977).

Rule 4 was again amended in 198__, effective 1983. Subdivisions (d)(2)(A) and (d)(2)(D) were amended by separating the existing methods of service into numbered methods and adding provisions for making personal service of process within the state by any form of mail addressed to the person to be served and requiring a signed receipt and resulting in delivery to that person. Subdivision (d)(3)(C) was amended to add "to that person" and "(2) or" was added to subdivision (h)(4) to conform to the amendments to subdivision (d)(2). Subdivision (j) was amended to change last "known" post office address to last "reasonably ascertainable" post office address to require that a person serving process not rely on a last "known" address if a later or current address is "reasonably ascertainable."

It is emphasized that personal service is preferred. When this is not possible, service by publication is authorized by subdivision (e), which requires a showing that personal service cannot be made upon the defendant in North Dakota [see subdivision (e)(2) for specific requirements].

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A problem may arise with service by mail under subdivision (d)(2) or (d)(3)(C) if the person to be served refuses delivery. This refusal of delivery is tantamount to receipt of the mail for purposes of service. On the other hand, if the mail is unclaimed, no service is made. Subdivision (k) was added in 198__, effective _______________, 1983, to make it clear that refusal of delivery constitutes delivery.

Statutes governing special procedures often conflict with these rules. As an example, NDCC § 32-19-32 concerning the time period for mailing the summons and complaint after publication in a mortgage foreclosure conflicts with Rule 4(e)(4). In this situation, Rules 4(d)(4) and 81(a) recognize that provisions of the statute prevail.

RULE 4(b), NDRAppP

Mr. Kirby MOVED that the proposed amendment to Rule 4(b), NDRAppP, be disapproved. Judge Kosanda seconded the motion. Motion CARRIED.

PROPOSED RULE 32.1, NDRCrimP

Judge Burdick MOVED to disapprove proposed Rule 32.1, NDRCrimP. Mr. Kirby seconded the motion. Motion CARRIED.

RULE 8.2, NDROC

Judge Burdick MOVED to amend Rule 8.2, NDROC, Alternative #3, as follows:

Title: Amend to read "Interim Orders In Domestic Relations Cases";

Line 1: Delete "Schedule Ex Parte Order." and insert "Orders";

Line 2: After the word "motion," insert "either ex parte or upon notice,";

Line 3: Delete "ex parte";

Line 5: Insert a comma after the word "direct";

Line 6: Insert a comma after the word "alia";

Line 12: Delete (d) and insert (b); Insert "Upon motion, either" after the word "Visitation.";

Line 13: Insert "ex parte or upon notice, an interim order providing for";

Line 20: Delete (f) and insert (c);

Line 23: Delete "the" and insert "a";

Line 25: After the word "costs" insert "and will be ordered only upon motion and notice."

Line 26: Delete (e) and insert (d);

Line 27: Delete "ex parte";

Line 28: After the word "issued" insert "ex parte";

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Line 34: Retain;

Line 35: Retain; after "provide" insert "that";

Line 36: Retain "All support payments";

Line 37: Retain;

Line 38: Retain "of the district court"; Insert a period; Insert "Payments must be in a manner acceptable to the clerk unless otherwise ordered by the court."

Line 38a Delete;

Line 39 Delete;

Line 40: Delete;

Line 41: Delete (g) and insert (f);

Line 42: Insert "Issued Ex Parte." at the beginning of the line; Delete "The" and insert "An"; after the word "order" insert "issued ex parte";

Line 55: Delete (b) and insert (g);

Line 56: Insert (1) at the beginning of the line;

Line 59: Delete "(h) Financial Statements." and insert (2);

Line 60: Delete "the" and insert "an"; after the comma delete "there";

Line 61: Delete "must also be filed" and insert "then";

Line 63: After "A" insert "must also be filed."

Judge LeClerc seconded the motion. Motion CARRIED.

Mr. Kirby MOVED to adopt alternative #3 of Rule 8.2, NDROC, as amended. Judge LeClerc seconded the motion. Motion CARRIED.

Judge LeClerc MOVED that our previously adopted Rule 8.2, NDROC, as amended, be further amended to delete in line 16 the words "of the spouse". Judge Murray seconded the motion. Motion CARRIED.

RULE 8.2

INTERIM ORDERS IN

DOMESTIC RELATIONS CASES

(a) Interim Support Orders. Upon motion, either ex parte or upon notice, an interim order of support may be issued by any district judge within a judicial district. The interim order, in addition to ordering support payments, may direct, inter alia, a party to continue to pay any monthly payments for rent, house payments, medical and hospitalization insurance premiums, telephone service charge, utility bills (gas,) sewer, water, electricity), as they become due. In the event support is ordered, a current mailing address must be listed for both parties.

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(b) Custody--Visitation. Upon motion, either ex parte or upon notice, an interim order providing for temporary custody of minor children may be granted, in which case the order must provide for reasonable visitation rights, unless the affidavit accompanying the motion sets forth sufficient facts to establish that visitation should be restricted to certain times and places or prohibited.

(c) Attorney's Fees and Costs. As a general rule, partial payments of attorney's fees and costs will be ordered if the financial statement sets forth facts establishing that the a party has insufficient personal income or funds with which to pay attorney's fees and costs and will be ordered only upon motion and notice.

(d) Ex Parte Interim Order--Affidavit--Restraining and Eviction Order. An interim order will not be issued ex parte unless the movant executes an affidavit setting forth specific facts relied on by the party sufficient to justify the issuance of the order. Unless excused by the court for good cause shown, a restraining and eviction order will not be issued ex parte unless the movant also appears personally.

(e) Payments to Clerk. The interim order must provide that all support payments must be paid to and through the clerk of the district court. Payments must be in a manner acceptable to the clerk unless otherwise ordered by the court.

(f) Right to Hearing--Form of Interim Order Issued Ex Parte. An interim order issued ex parte must provide specifically:

(1) That the party to whom the order is directed, upon written motion, may have a hearing upon the necessity for the issuance of the order or the amounts to be paid; and

(2) That unless the motion is served or filed in the office of the clerk of the district court within 5 days after service of the interim order, the order becomes final and is nonappealable, pending a final determination of the issues raised by the pleadings or until further order of the court in the event of a material change of circumstances.

(g) Financial Statement to be Filed.

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(1) A motion for temporary support, custody and attorney's fees must have attached thereto an itemized financial statement prepared as shown in Appendix A.

(2) If a motion objecting to an interim order is filed, then at least one day before the hearing on the motion a financial statement prepared as shown in Appendix A must also be filed.

(f) Right to Hearing--Form of Interim Order Issued Ex Parte. An interim order issued ex parte must provide specifically:

(1) That the party to whom the order is directed, upon written motion, may have a hearing upon the necessity for the issuance of the order or the amounts to be paid; and

(g) Financial Statement to be Filed.

(1) A motion for temporary support, custody and attorney's fees must have attached thereto an itemized financial statement prepared as shown in Appendix A.

(2) If a motion objecting to an interim order is filed, then at least one day before the hearing on the motion a financial statement prepared as shown in Appendix A must also be filed.

RULES 16(i) and 17, NDRCrimP

Mr. Lamb MOVED that consideration of Rules 16(i) and 17, NDRCrimP, be laid over to a later time. Judge LeClerc seconded the motion. Motion CARRIED.

RULES 40(e), 4(c)(2) and 5(d), NDRCivP

Mr. Loder MOVED that the proposed amendments to Rule 40(e), 4(c)(2), and 5(d), NDRCivP, be disapproved. Judge LeClerc seconded the motion. Motion CARRIED.

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RULE 4(d)(2)(H), NDRCivP

Judge Leclerc MOVED that the proposed amendment to Rule 4, NDRCivP, to add a subdivision to (d)(2)(H) be disapproved. Mr. Hill seconded the motion. Motion CARRIED.

RULE 44, NDRCrimP

Mr. Hill MOVED the adoption of the proposed amendments to Rule 44, NDRCrimP, draft #2, as follows:

Line 2: Delete "shall be" and insert "is";

Line 5: Insert the words "in the courts of" after

the word "appeal";

Line 6: Insert the words "this state" at the beginning

of the line;

Line 7: Delete "shall be" and insert "is";

Line 11: After the word "appeal" insert "in the courts of this state".

Judge Kosanda seconded the motion. Motion CARRIED.

RIGHT TO AND ASSIGNMENT OF COUNSEL

Absent a knowing and intelligent waiver, every indigent defendant is entitled to have counsel appointed at public expense to represent him at every stage of the proceedings from his initial appearance before a magistrate through appeal in the courts of this state in all felony cases. Absent a knowing and intelligent waiver, every indigent defendant is entitled to have counsel appointed at public expense to represent him at every stage of the proceedings from his initial appearance before a magistrate through appeal in the courts of this state in all non-felony cases unless the magistrate has determined that sentence upon conviction will not include imprisonment. The court shall appoint counsel to represent a defendant at his expense if he is unable to secure the assistance of counsel and is not indigent.

RULE 41, NDRAppP

Judge Burdick MOVED that further consideration of amendments to Rule 41, NDRAppP, be laid over to the next meeting. Mr. Kirby seconded the motion. Motion CARRIED.

ADJOURNMENT

Mr. Kraft MOVED to adjourn to November 18, 1982. Mr. Hill seconded the motion. Motion CARRIED.

___________________________
Secretary

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North Dakota Supreme Court

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