MINUTES OF MEETING
Joint Procedure Committee
September 24-25, 2009
TABLE OF CONTENTS
Annual Rules Package 3
Rule 3.4, N.D.R.Ct., Privacy Protection for Filings Made with the Court 3
Rule 41, N.D. Sup. Ct. Admin. R., Access to Court Records 8
Rule 5, N.D.R.Crim.P., Initial Appearance Before the Magistrate 9
Proposed Rules of Juvenile Procedure 10
Rule 8.2, N.D.R.Ct., Interim Orders In Domestic Relations Cases 10
Rule 28, N.D.R.App.P., Briefs 11
Rule 5, N.D.R.Civ.P., Service and Filing of Pleadings and Other Papers 12
Rule 11, N.D.R.Civ.P., Signing Pleadings, Motions, and Other Papers; Representations to
the Court; Sanctions 13
Rule 44, N.D.R.Civ.P., Proof of Official Record 14
Rule 44.1, N.D.R.Civ.P., Determination of Foreign Law 14
Rule 46, N.D.R.Civ.P., Exceptions Unnecessary 14
Rule 32, N.D.R.App.P., Form of Briefs, Appendices, and Other Papers 15
Rule 47, N.D.R.Civ.P., Jurors 16
Rule 48, N.D.R.Civ.P., Jurors of Less Than Nine-Majority Verdict 18
Rule 47, N.D.R.Civ.P., Jurors 19
Rule 49, N.D.R.Civ.P., Special Verdicts and Interrogatories 19
Rule 50, N.D.R.Civ.P., Judgment as a Matter of Law in Jury Trials 20
Rule 51, N.D.R.Civ.P., Instructions to Jury 21
Rule 52, N.D.R.Civ.P., Findings by the Court 22
Rule 53, N.D.R.Civ.P., Masters 22
Rule 54, N.D.R.Civ.P., Judgment; Costs 23
Rule 55, N.D.R.Civ.P., Default; Default Judgment 23
Rule 56, N.D.R.Civ.P., Summary Judgment 23
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on September 24, 2009, by the Chair, Justice Mary Muehlen Maring.
ATTENDANCE
-2-
Present:
Justice Mary Muehlen Maring, Chair
Honorable John Greenwood
Honorable Debbie Kleven
Honorable William McLees
Honorable David W. Nelson
Honorable David E. Reich
Honorable Thomas J. Schneider
Mr. Larry L. Boschee
Mr. Daniel Dunn
Mr. Galen J. Mack
Mr. Richard H. McGee
Assistant Dean Jeanne L. McLean
Ms. Joanne Hager Ottmar (Friday only)
Mr. Steven W. Plambeck
Mr. Bruce D. Quick
Absent:
Honorable Georgia Dawson
Honorable M. Richard Geiger
Honorable William A. Herauf
Mr. Robert Hoy
Mr. Kent Reierson
Staff:
Andy Forward
Kim Hoge
PRELIMINARY MATTERS
The Chair introduced Andy Forward as the new staff attorney. Mr. Forward is filling in for Mike Hagburg while he is deployed to Kosovo. The Chair reviewed the schedule for future meetings. Future meetings are scheduled for January 28-29, 2010, April 29-30, 2010, and September 23-24, 2010.
The Chair informed the Committee that Judge Herauf has replaced Judge Schmalenberger on the Committee. Judge Geiger's term expires December 31, 2009, and he is ineligible for reappointment. The Chair informed Mr. Boschee, Mr. Dunn, Judge Greenwood, and Ms. Ottmar that their terms will expire on December 31, 2009, and they are eligible for reappointment for an additional three-year term.
-3-
APPROVAL OF MINUTES
Mr. Boschee MOVED to approve the minutes. Judge Schneider seconded. Motion CARRIED unanimously.
ANNUAL RULES PACKAGE (PAGES 46-48 OF THE AGENDA MATERIAL)
Staff explained that the Committee's annual rules package was before the Supreme Court and that a hearing on the proposed rule amendments in the package had been set for October 21, 2008.
The Chair welcomed district court clerks Wanda Knutson, of Mercer County, Beverly Demers, of Walsh County, and Debra Simenson, of Burleigh County to explain their thoughts and concerns regarding Rule 3.4 and N.D. Sup. Ct. Admin. R. 41. The clerks shared the following suggestions about the two rules:
1) the new rules have created a lot of extra work;
2) all confidential information should be supplied on a separate form rather than filing both a redacted and an unredacted document;
3) defendants' addresses in criminal cases should not be protected as they are needed for orders to show cause hearings and on documents supplied to the sheriff's office to be mailed out;
4) a minor's name should not be protected in cases in which there is no statute, regulation, or rule mandating nondisclosure;
5) redaction should not be required on documents going to other courts or state agencies such as law enforcement or child support;
6) subdivision (f) of Rule 3.4, Option to File a Reference List, should be mandatory; and
7) guardianship, probate, and conservatorship cases should be restricted, because they contain a lot of personal information.
The clerks would like the changes to be in effect as soon as possible, because two counties, Cass and Traill, will be converting to the new Odyssey system on October 12.
The clerks brought along a civil file and a criminal file with redacted and unredacted documents for the members to view.
-4-
The Chair asked the clerks what happens when a certified copy of a divorce judgment is requested. A clerk responded that a certified copy of a divorce judgment consists of the confidential information sheet and the judgment.
A member asked what is put on the confidential information form. A clerk answered that addresses, dates of birth, social security numbers, and children's names in a divorce are included on the form.
A member said that warrants should contain a defendant's date of birth, because there are some people with the same name. It is needed to arrest the right person.
Staff explained that numerous requests for amendments to Rule 3.4 and Admin. R. 41 have been received since Rule 3.4 went into effect March 1, 2009. Staff explained the proposed changes to Rule 3.4.
Judge Nelson MOVED to approve the amendments to Rule 3.4. Judge Kleven seconded.
The Chair pointed out the proposed subdivision (b) on page 52, lines 14-17. The proposed subdivision would place the responsibility of redacting protected information on the parties. A clerk would not be required to review the document for compliance with the rule. The clerks said they usually will notify a party if a filing contains protected information, but it would be nice not to be held responsible if a party files a document with protected information that should have been redacted and the clerk fails to notice it.
Judge Nelson MOVED to amend page 54, line 44, to replace "may" with "must," and line 47, to replace "must be filed under seal and may be amended as of right" with "will be confidential as to the parties and pursuant to court order." Judge McLees seconded.
Mr. Plambeck MOVED to amend the motion to replace "and pursuant to court order" with "or as the court may direct." Judge Nelson seconded. The motion to amend the motion CARRIED.
The motion, as amended, CARRIED.
Judge Nelson MOVED to amend page 53, to delete the text on lines 39-42, subdivision (e) of the existing rule. Judge Kleven seconded.
A member said there was no purpose in having to file a redacted and an unredacted document if the confidential information form was going to be made mandatory.
-5-
A member asked if anything would be lost by having a redacted and unredacted copy of the same document. A clerk responded that there is no benefit to having both documents as long as there is a confidential information form. The Chair said that Minnesota uses only a confidential information form.
A member said Minnesota Rule 11.02 makes the parties responsible for redacting confidential information. The member thought it was mentioned earlier that court clerks in Minnesota are reviewing documents to check for protected information. Staff explained that in Clay County, clerks are reviewing documents for confidential information when there is a request for a document that was filed before Rule 11 went into effect. The parties are responsible for redaction after the rule went into effect.
A member asked the clerks if there were any cases they could think of where it would be good to have a redacted copy and an unredacted copy of a document. A clerk answered no.
The motion to amend CARRIED.
The Chair asked the clerks whether a confidential information form or reference list shows up on the docket. A clerk answered that it is shown on the docket as a separate document.
The Chair mentioned the Supreme Court proposed an amendment to the rule by adding lines 50-53 to page 54. The proposed amendment would require a prosecutor to file a confidential information form that includes a defendant's social security number and birth date when known.
A member said this requirement would be another piece of paper to file, along with a complaint and a warrant. The member said a defendant's date of birth should not have to be redacted and should be available to the public.
Judge Kleven MOVED to amend page 54, line 43 to delete "Option for." Mr. Quick seconded. Motion CARRIED.
By unanimous consent, staff was instructed to revise the explanatory note.
A member thought the Supreme Court proposal about including a defendant's information on a confidential information form created an ambiguity, because under Rule 3.4, an arrest or search warrant is exempted from redaction. But if a prosecutor includes a defendant's birth date on a confidential information form, he or she may not include the full
-6-
date of birth on an arrest warrant. The member thought maybe the language on page 54, lines 50-53 was unnecessary.
The Chair indicated the complaint, information, affidavits to support probable cause, and warrants are exempt from redaction under Rule 3.4. The Chair asked if there are other documents a prosecutor would file that would need to be redacted. A member said there may be occasions where a prosecutor would file a document, such as an affidavit for a search warrant, that would not require a defendant's birth date or social security number to be included on the document. In that case, a prosecutor could put the social security number or birth date on a confidential information form.
Judge Nelson MOVED to add the words "and not in the pleadings" on page 54, line 53, after the word "known." A member said the proposed motion would not require protected information to be redacted in the charging documents or pleadings. A confidential information form would have to be filed on all other documents containing protected information.
A member suggested adding a provision to the rule stating that all information contained in criminal matters is public. The member said it can be confusing looking at both Rule 3.4 and N.D. Sup. Ct. Admin. R. 41 to determine what information needs to be redacted and what information is accessible to the public.
A member said it was confusing because under the current rules, a defendant's date of birth does not need to be redacted from a warrant, but does need to be redacted on a criminal judgment. Another member said a date of birth should be included on a judgment. This makes it easier for news organizations to obtain a defendant's date of birth and report it. A member said a criminal defendant's date of birth should be public information and should not be redacted on any documents.
The motion was WITHDRAWN.
Judge Nelson MOVED to add a new paragraph (c)(9) to page 53, to read "the defendant's date of birth in a criminal matter." Mr. Mack seconded.
A member said traffic matters and infractions should be included in the motion. The member said the motion should include criminal matters, noncriminal traffic matters, and infractions.
Judge Kleven MOVED to amend the motion to read "the defendant's date of birth in a criminal matter, a noncriminal traffic matter, and infractions." Judge Nelson seconded.
-7-
Mr. Plambeck MOVED to amend the motion to read "a court filing that is related to a criminal matter, a non-criminal traffic matter, and matters involving an infraction, a defendant's date of birth." Ms. McLean seconded. A member said this proposed language is similar to the language used in (c)(5).
A member suggested that game and fish offenses should be included in the motion. By unanimous consent, "game and fish offense" was added after "non-criminal traffic matter."
Mr. Plambeck MOVED to amend the motion to read "a court filing that is related to criminal matters, non-criminal motor vehicle and game and fish matters, and infractions, a defendant's date of birth." Ms. McLean seconded. The motion to amend the motion CARRIED.
The motion, as amended, CARRIED.
Mr. Mack MOVED to amend page 54, to delete the text on lines 50-53. Mr. Plambeck seconded. A member said court clerks will receive a criminal defendant's information at the initial appearance, so a confidential information form would not be needed. Another member said this is not happening in all of the districts; some clerks are not getting a defendant's information at the initial appearance. The motion FAILED.
The motion to approve the proposed amendments to N.D.R.Ct. 3.4 and to send the rule to the Supreme Court CARRIED.
Mr. Quick MOVED to adopt Appendix H, Rule 3.4 Confidential Information Form. Mr. Boschee seconded. A member asked if a different form would need to be used for criminal cases. The Chair said the same form could be used in both criminal and civil cases.
The motion to approve the proposed Appendix H, Rule 3.4 Confidential Information Form and to send it to the Supreme Court CARRIED.
The Chair asked whether Appendix H should be referenced in Rule 3.4. In Minnesota, the Confidential Information Form is referenced in its Rule 11. A member asked what is done in North Dakota. Staff said that N.D.R.Ct. 8.2(e)(1) contains a reference to Appendix B, itemized financial statement.
Judge Kleven MOVED to add "(shown in Appendix H)" to page 54, line 45, after the word "form." Mr. Quick seconded. Motion CARRIED.
-8-
RULE 41, N.D. Sup. Ct. Admin. R., ACCESS TO COURT RECORDS (PAGES 49-76 OF THE AGENDA MATERIAL)
Judge Nelson MOVED to approve the amendments to Rule 41. Ms. McLean seconded.
Judge Nelson MOVED to amend page 65, line 169, to add "except when the minor is a party" after the word "minor." Judge McLees seconded.
A member said the motion would address the issue of licensed drivers who are minors and are charged with non-criminal traffic offenses.
Mr. Mack moved to amend the motion to replace "an individual" on page 65, line 169, with "a nonparty". Mr. Plambeck seconded.
Mr. Plambeck MOVED to amend the motion to add "unless the minor is a party, and there is no statute, regulation, or rule mandating nondisclosure" on page 65, line 169, after the words "known to be a minor." Judge Kleven seconded. A member said this language is similar to the language used in N.D.R.Ct. 3.4(c)(8). The motion to amend the motion CARRIED.
Mr. Mack WITHDREW his motion without objection.
The motion, as amended, CARRIED.
Staff discussed the proposed changes to Rule 41. A member said if a person wants to have protected information removed from a document filed before the adoption of N.D.R.Ct. 3.4, they should file a motion with the court rather than make a written request to the clerk. The member said a person should locate the documents they want changed themselves, and submit redacted documents to the court for the court's approval. The member thought the proposed Section 6(a) contained on page 65, line 185, was too broad. The member said that under the proposal, anybody could ask a clerk to go through an entire file and redact the protected information listed in Rule 3.4.
Attorney Jack McDonald, a visitor, asked if he could make some comments about the proposed change to Section 6. He said there would be problems with certification of documents. He said there could be problems with certification of documents and identification of parties if official documents are altered by a clerk. A clerk said in their court, they have a stamp that says "this is a certified copy of a document as redacted."
-9-
Staff explained that under the current Rule 41, Section 6 already contains a procedure for a person to request a court to prohibit access to information. A member said this is the process that should be followed if someone wants a document changed.
Judge Nelson MOVED to amend page 65-66, to delete the text in lines 185-192. Judge Kleven seconded. Motion CARRIED.
The Chair asked the Committee whether probate, guardianship, and conservatorship cases should be restricted. A member said those files should not be restricted any more than they already are. The member thought those files should be accessible to the public. Staff explained that the clerk from Clay County Minnesota said there are not a lot of requests from the public for probate or family law files.
Judge Nelson MOVED to amend page 59, line 62-64, to delete the text "A party or nonparty may request to have protected information redacted from a court record as provided in Section 6(a)." Judge Kleven seconded. A member said it would be nice to retain that language, as it explains how a person can request to have protected information redacted.
The motion CARRIED 8 to 4.
By unanimous consent, staff was instructed to revise the explanatory note.
The motion to approve the proposed amendments to N.D. Sup. Ct. Admin. R. 41 and to send the rule to the Supreme Court CARRIED.
Judge Kleven MOVED that the proposed amendments to N.D.R.Ct. 3.4 and N.D. Sup. Ct. Admin. R. 41 be sent immediately to the Supreme Court as an emergency measure. Judge Nelson seconded. The motion CARRIED.
RULE 5, N.D.R.Crim.P., INITIAL APPEARANCE BEFORE THE MAGISTRATE (PAGES 77-91 OF THE AGENDA MATERIAL)
Staff explained the Supreme Court made minor amendments to the last sentence of subdivision (e). A hearing on Rule 5 will be held on October 21. The Chair said the main concern of the Court is the inclusion of felonies with the use of a uniform complaint and summons.
-10-
PROPOSED RULES OF JUVENILE PROCEDURE (PAGE 92 OF THE AGENDA MATERIAL)
Staff explained the comment period for the proposed rules of juvenile procedure expired on September 14, 2009. The Supreme Court will meet in the future to discuss the proposed set of rules.
RULE 8.2, N.D.R.Ct., INTERIM ORDERS IN DOMESTIC RELATIONS CASES (PAGES 93-98 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to Rule 8.2 were suggested by the Supreme Court. There was a concern parties were using Rule 8.2 to get a custody change without having a hearing.
Mr. Dunn MOVED to approve the amendments to Rule 8.2. Judge Kleven seconded.
The Chair said there have recently been a lot of custody changes on an ex parte interim order. The party the order is directed to has been unable to find an attorney and request a hearing in ten days before the order becomes final.
A member said there are many situations where a hearing is not held after an ex parte interim order is issued. The member said requiring a hearing in those situations would not be useful. The Chair said ex parte interim orders should only be issued under exceptional circumstances. A member asked who is doing this to get a custody change. The Chair said parties who aren't married have been using Rule 8.2 to get a change of custody on an ex parte basis under false allegations.
A member said these ex parte interim orders are rare in the area where he practices. The member said that because they are rare, a mandatory hearing may not be needed. Another member said that requiring a hearing in these situations might be a good thing.
A member said rather than having a required hearing, perhaps the time to request a hearing should be increased from ten days to a longer period. A member said if a person is unable to find a lawyer and doesn't know the process, they won't know what to do at a mandatory hearing. The Chair said a mandatory hearing would at least give the party to whom the order is directed an opportunity to request a continuance so the party can retain the services of a lawyer if one is not already retained. The Chair said that having an ex parte order that becomes final in ten days can be a harsh result.
A member said that because these orders are rare, it probably wouldn't increase a
-11-
court's total number of hearings by much. A member said a hearing may be beneficial in order to determine whether the allegations made in the affidavit in support of the order are truthful.
A member asked if it would be possible to have the hearing within 30 days. Some members responded that it would be possible to have a hearing within 30 days, because the hearing would be limited to whether there were exceptional circumstances justifying the issuance of the order.
Judge Greenwood MOVED to amend page 95, line 26, to insert "ex parte" before the word "interim," and move the text "upon the necessity for the issuance of the order or the amounts to be paid" on line 25, to line 26 after the word "order." Judge Nelson seconded.
Mr. Plambeck MOVED to amend the motion, to delete the word "date" on line 26, and move the text "upon the necessity for the issuance of the order or the amounts to be paid" before the word "within" on line 26. Judge McLees seconded. The motion to amend the motion CARRIED.
Judge Reich MOVED to amend the motion, to add the word "That" before the text "a hearing" on lines 25-26, and insert the phrase "be held" before the word "within" on line 26. Judge Kleven seconded. The motion to amend the motion CARRIED.
By unanimous consent, staff was instructed to revise the explanatory note.
The motion to approve the proposed amendments to N.D.R.Ct. 8.2 and to send the rule to the Supreme Court CARRIED.
Mr. Mack MOVED that the proposed amendments to N.D.R.Ct. 8.2 be sent immediately to the Supreme Court as an emergency measure. Judge Schneider seconded. The motion CARRIED.
RULE 28, N.D.R.App.P., BRIEFS (PAGES 99-110 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to Rule 28 were suggested by the Supreme Court. The proposed amendment will require a party to brief the appropriateness of a district court's grant of a certification under N.D.R.Civ.P. 54(b) when the appeal is brought as a result of the certification.
A member asked if other courts have a similar requirement. The Chair said she had not heard of any. A member said in federal court you have to brief the appropriateness of
-12-
jurisdiction.
A member said the proposed amendment appears to require only the appellant to brief the appropriateness of Rule 54(b) certification. The Chair said both the appellant and appellee should address it. Staff said that under subdivision (c) of the rule, the appellee's brief must conform to the requirements of the appellant's brief under subdivision (b), so the proposed amendment would require both parties to brief the issue. A member said both parties would probably argue that the certification was appropriate in order to get a decision on appeal.
Judge Schneider MOVED to approve the amendments to Rule 28. Ms. McLean seconded. The motion to approve the proposed amendments to N.D.R.App.P. 28 and to send the rule to the Supreme Court CARRIED.
Judge Kleven MOVED that the proposed amendments to N.D.R.App.P. 28 be sent immediately to the Supreme Court as an emergency measure. Judge Schneider seconded. The motion CARRIED.
A member suggested adding an amendment saying that an argument on Rule 54(b) certification would not count against the overall word limit of the principal brief. The Chair said in the past when the Supreme Court requested additional briefing on Rule 54(b) certification, the briefs were limited to about ten pages. The members agreed there should be a limit on the length of the Rule 54(b) argument.
A member suggested adding a new subparagraph (a)(7)(C) to N.D.R.App.P. 32 that would limit the length of a Rule 54(b) argument. The member said the length of the argument should be the same as the length of a reply brief, which is 2,500 words or ten pages depending on the typeface that is used. The Chair suggested that staff be directed to prepare a draft of an amendment to Rule 32 for the Committee to discuss on Friday morning.
Staff explained that the proposed amendments to Rule 5 were consistent with the federal form and style amendments and intended to make the rule more easily understood and to make style and terminology consistent throughout the rules. The Committee previously made changes to subdivisions (a) and (b) to conform with the federal amendments. Subdivisions (d), (e), and (f) are different from the federal rule, and the changes proposed were intended to improve organization to make the subdivisions easier to understand.
-13-
Mr. Quick MOVED to approve the proposed amendments to Rule 5. Judge Reich seconded.
Mr. Plambeck MOVED to amend page 117, lines 120-121, to delete "or unless under Rule 13 or Rule 14" and insert "Except as otherwise provided under Rules 13 and 14," on line 119 before the text "The clerk."
A member said a party could be added under Rule 15 before the opposing party responds. By unanimous consent, "or Rule 15" was added after "14." The motion to amend CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 5 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
Staff explained that the proposed amendments to Rule 11 were consistent with the federal form and style amendments and intended to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Ms. McLean MOVED to approve the proposed amendments to Rule 11. Mr. Quick seconded.
Mr. Plambeck MOVED to amend page 125, line 14, to delete "e-mail address." Mr. Mack seconded. A member said the term is in the federal rule for electronic filing purposes. North Dakota has electronic filing only on the consent of the parties. The member said there should not be a requirement to include an e-mail address on pleadings in a case where there is no consent to electronic filing.
A member said an e-mail address should be included on a pleading if the signer has an e-mail address; then one would not have to look it up on the Supreme Court website. The Chair said that clerks prefer to have an e-mail address included.
The motion to amend FAILED.
Judge Greenwood MOVED to amend page 125, line 14, to replace "e-mail" with "electronic mail." Mr. McGee seconded. A member said "e-mail" may be too narrow of a term. The motion to amend CARRIED.
-14-
The motion to approve the proposed amendments to N.D.R.Civ.P. 11 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 44, N.D.R.Civ.P., PROOF OF OFFICIAL RECORD (PAGES 136-143 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 44 were consistent with the federal form and style amendments and intended to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Judge Kleven MOVED to approve the proposed amendments to Rule 44. Mr. Dunn seconded.
A member said Rule 44 may not be necessary as long as Evidence Rule 902 is in effect. The member said the two rules appear to be redundant. The member said Evidence Rule 902 seems broader than Rule 44. The Chair said Rule 44 contains a cross reference to Evidence Rules 901 and 902. Staff was instructed to research Fed.R.Civ.P. 44 and Fed.R.Evid. Rule 902 for the next meeting to determine if Rule 44 is necessary.
RULE 44.1, N.D.R.Civ.P., DETERMINATION OF FOREIGN LAW (PAGES 144-146 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 44.1 were consistent with the federal form and style amendments and intended to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Mr. Mack MOVED to approve the proposed amendments to Rule 44.1. Mr. Boschee seconded.
The motion to approve the proposed amendments to N.D.R.Civ.P. 44.1 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 46, N.D.R.Civ.P., EXCEPTIONS UNNECESSARY (PAGES 147-150 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 46 were consistent with the federal form and style amendments and intended to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Judge McLees MOVED to approve the proposed amendments to Rule 46. Judge
-15-
Schneider seconded.
By unanimous consent, an amendment was made to page 148, line 15, to delete "identical to."
The motion to approve the proposed amendments to N.D.R.Civ.P. 46 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
The meeting recessed at approximately 4:45 p.m. on September 24, 2009.
September 25, 2009 - Friday
The meeting was called to order at approximately 9:00 a.m. by Justice Mary Muehlen Maring, Chair.
RULE 32, N.D.R.App.P., FORM OF BRIEFS, APPENDICES, AND OTHER PAPERS (HANDOUT)
Staff presented a draft of the suggested amendment to Rule 32 regarding the word and page limit for an argument on N.D.R.Civ.P. 54(b) certification.
(C) Word and Page Limit for N.D.R.Civ.P. 54(b) Certification. If proportionately spaced typeface is used, an argument on N.D.R.Civ.P. 54(b) certification may not exceed 2,500 words. If monospaced typeface is used, an argument may not exceed 10 pages.
Mr. Quick MOVED to approve the proposed amendments to Rule 32. Ms. Ottmar seconded.
A member said there should be something in the rule stating the Rule 54(b) argument does not count toward the word or page limit for the principal brief.
Mr. Boschee MOVED to insert a new sentence "A N.D.R.Civ.P. 54(b) argument does not count toward the overall total word or page limit." on line 46 after the text "10 pages." Mr. Plambeck seconded. A member said the phrase "does not count toward" could probably be reworded.
Judge Reich MOVED to amend the motion, to state "Word and page limits for Rule 54(b) certification are in addition to the limits set forth in (7)(A) and (7)(B)." Mr. Boschee seconded. The motion to amend the motion CARRIED.
-16-
The motion to approve the proposed amendments to N.D.R.App.P. 32 and to send the rule to the Supreme Court CARRIED.
Judge Kleven MOVED that the proposed amendments to N.D.R.App.P. 32 be sent immediately to the Supreme Court as an emergency measure. Mr. Dunn seconded. The motion CARRIED.
A member mentioned how they had a case on appeal as the appellant arguing that Rule 54(b) certification was improper. The member prevailed on appeal, but was assessed costs because the appeal was dismissed for improper Rule 54(b) certification. The member said perhaps the definition of "prevailing party" for Rule 54(b) issues should be changed. The Chair said that sometimes the Supreme Court will award no costs to either side when each side "wins a little." No action was taken on the issue.
RULE 47, N.D.R.Civ.P., JURORS (PAGES 151-162 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 47 were consistent with the federal form and style amendments and intended to make the rule more easily understood and to make style and terminology consistent throughout the rules. Staff said Rule 47 was different from the federal rule; the changes made were based on general form and style principles and on N.D.R.Crim.P. 24, which the Committee revised in 2005.
Ms. McLean MOVED to approve the proposed amendments to Rule 47. Ms. Ottmar seconded.
A member asked if the process of jury selection was discretionary with the district court. A member said the process he uses brings in the entire jury panel of up to forty people, who are each given assigned seats. The panel is sworn in and the member does the initial voir dire with standard questions, and then lets the attorneys for each side question the jurors. When each side is done with their questions, the challenges for cause are done first, then the peremptory challenges are done. After the jury is selected, alternates are chosen. The process takes about an hour and a half. The member said this process is used primarily with criminal cases; civil cases take longer to select a jury. A member said this process is difficult for trial lawyers. The member said it is hard to establish a rapport with the jurors when you have to try to question up to forty people at once. The member said the process may be economical, but it is not good lawyering, because picking the jury is the most important part of a trial. The member suggested that unless the parties stipulate otherwise, the process should not be discretionary.
A member said the proposed procedure is based on what is done in federal court. The
-17-
member thought the proposed process is faster and is the process he prefers.
A member said that unless the parties agree otherwise, the rule should provide a uniform process throughout all of the district courts in the state.
Mr. McGee MOVED to amend page 153, line 13, to insert "Unless otherwise stipulated by the parties," after "Venire." and replace "may" with "must." Mr. Mack seconded. Motion to amend CARRIED 11-3.
The members discussed the text on page 154, lines 36-38, regarding waiver of peremptory challenges. The members said the text was difficult to understand and may no longer be necessary as part of the rule.
Ms. Ottmar MOVED to amend page 154, to delete text on lines 36-38, beginning with "A waiver as . . . ." Judge Kleven seconded. The motion to amend CARRIED.
The Chair said that numerals are being used as part of the federal changes rather than spelling out the numbers. An example was pointed out on page 154, line 29, where the numeral 4 was used. The Chair said using numerals 1-10 rather than spelling them out has led to publishing errors, for example, a 2 becomes a 3 or a 6 becomes an 8 when published. Some members said they were taught to spell numbers one through ten and use numerals for numbers 11 and on.
Mr. Mack MOVED to amend the rule by spelling numbers one through ten, and using numerals for numbers 11 and on. Mr. Boschee seconded. Motion to amend CARRIED.
Mr. Plambeck MOVED to amend page 153, to delete the word "If" on line 15, replace "exercised" with "exhausted" on line 15, and to delete the text "the venire size is larger than required by Rule 48" on lines 15-16. Mr. Quick seconded. A member said this proposal would require a party to use all of its peremptory challenges. The motion to amend FAILED 12-2.
Judge Greenwood MOVED to amend page 154, to delete the text "If no" on line 35, and delete the text "are taken until the panel is full, they" on lines 35-36. Judge McLees seconded. The motion to amend CARRIED.
Mr. Mack MOVED to amend the rule by interchanging subdivisions (b) and (c). Mr. McGee seconded. A member said challenges for cause are generally done before peremptory challenges; it would make better sense to reflect that in the rule. The motion to amend CARRIED. By unanimous consent, staff was instructed to note the change in the explanatory
-18-
note.
There was discussion on the use of "venire" and "panel" in the rule. A member said there should be consistency and uniformity in the rule. The members agreed the two words appear to have the same meaning and are used interchangeably throughout the rule.
Ms. Ottmar MOVED to amend the rule by replacing the term "venire" with "panel." Judge McLees seconded. Motion to amend CARRIED.
Mr. Boschee MOVED to amend page 154, line 28, to delete the text "to be impaneled." Judge McLees seconded. The motion to amend CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 47 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
Staff explained that the proposed amendments to Rule 48 were consistent with the federal form and style amendments and intended to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Mr. Quick MOVED to approve the proposed amendments to Rule 48. Ms. McLean seconded.
A member said the proposed rule appears to allow the parties to stipulate only to a jury size of less than six members. Under the existing rule, the parties can stipulate to a jury of less than nine.
Ms. Ottmar MOVED to amend page 164, line 14, to replace "six" with "nine," and replace "and" with "or." Mr. Mack seconded. A member asked if the amendment would still allow the parties to stipulate to a jury size of less than six. A member said the constitution requires at least six jurors.
A member said the proposed rule appears to contradict itself. The first sentence says a jury in a civil action must have six members whose verdict must be unanimous. The next sentence says the parties may stipulate to a majority verdict or finding. The member said the
two sentences appear to contradict each other.
A member said perhaps the rule should not be changed at all. The member said the
-19-
form and style of the existing rule might not need to be changed.
The motion to amend FAILED.
Judge Nelson MOVED to amend page 164, line 14, to replace "less" with "fewer." Judge Greenwood seconded. Motion to amend CARRIED.
Judge Nelson MOVED to amend page 164, to retain the existing language of the rule, and replace "less" with "fewer" on line 5. Mr. Mack seconded. A member said the constitution requires a unanimous verdict. The member asked whether the constitution allows for a majority verdict to be stipulated by the parties. A member said the federal rule requires a verdict to be unanimous, unless otherwise stipulated by the parties.
The motion to amend CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 48 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 47, N.D.R.Civ.P., JURORS (PAGES 151-162 OF THE AGENDA MATERIAL)
There was discussion that "venire" and "panel" may have separate meanings. A member said "venire" may mean the whole group of potential jurors, and "panel" may mean the jury chosen to hear the case.
Ms. Ottmar MOVED to amend Rule 47 to use the terms "panel" and "venire" as they are presently used in the rule. Mr. Mack seconded. The effect of the motion would be to reverse Ms. Ottmar's previous amendment to Rule 47. Motion CARRIED.
Staff was instructed to research the terms "venire" and "panel" to see if there is a substantive difference between the two terms. The members agreed there needs to be some consistency with the words used in the rule.
RULE 49, N.D.R.Civ.P., SPECIAL VERDICTS AND INTERROGATORIES (PAGES 168-174 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 49 were consistent with the federal form and style amendments and intended to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Mr. Quick MOVED to approve the proposed amendments to Rule 49. Ms. McLean
-20-
seconded.
Mr. Plambeck MOVED to amend page 171, to replace the text "together with" on lines 47-48 with "The general verdict may include." Mr. Dunn seconded.
A member said a general verdict may or may not have written questions. The member said the proposed rule appears to say a general verdict must include questions, when actually it is discretionary with the court. A member said the federal rule uses the same language as the proposed rule. The motion to amend FAILED 11-4.
Mr. Plambeck MOVED to amend page 171, to replace "(4)" with "(c)" on line 59. Judge McLees seconded. A member said there can be inconsistencies with general verdicts and special verdicts. By unanimous consent, the term "general" was deleted on line 60. The motion to amend CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 49 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
Staff explained that the proposed amendments to Rule 50 were consistent with the federal form and style amendments and intended to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Mr. Quick MOVED to approve the proposed amendments to Rule 50. Ms. Ottmar seconded.
There was discussion about the federal changes taking effect on December 1, 2009, regarding how time periods will be computed under Fed.R.Civ.P. 6. Under the new changes, weekends and holidays will be counted, unless the last day of the period is on a weekend or legal holiday. The Chair said the Committee may want to consider making similar changes at the January meeting.
Judge Kleven MOVED to amend page 176, line 21, to replace "not" with "no." Mr. Dunn seconded. The motion to amend CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 50 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
-21-
RULE 51, N.D.R.CIV.P., INSTRUCTIONS TO JURY (PAGES 184-191 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 51 were consistent with the federal form and style amendments and intended to make the rule more easily understood and to make style and terminology consistent throughout the rules. Staff explained the proposed language in (d)(1)(B) requires a party to properly request a jury instruction and also object if the instruction is not given in order to assign error. The existing rule does not require a party to object to a failure to give an instruction.
Ms. McLean MOVED to approve the proposed amendments to Rule 51. Judge Kleven seconded.
Mr. Boschee MOVED to amend page 187, line 53, to replace "(b)(2)" with "(b)(1)(B)." Ms. Ottmar seconded. Motion to amend CARRIED.
Mr. Plambeck MOVED to amend page 185, line 9, to delete the term "the" and the text "it wants the court to give." Judge Kleven seconded. The motion to amend CARRIED.
The Chair asked whether the Committee wanted to adopt the change to (d)(1)(B) on page 187, lines 62-63, that would require a party to object to a failure to give a requested jury instruction. The current rule does not require an objection. A member asked why an objection is required, in addition to making a proper request for an instruction. Staff said the federal rule requires an objection. A member said he always objects, because he thought the state rule required it.
Mr. Dunn MOVED to amend page 187, lines 62-63, to delete the text "and, unless the court rejected the request in a definitive ruling on the record, also properly objected." Mr. Mack seconded. A member said if a requested instruction is not given, an objection seems to be unnecessary.
The motion to amend CARRIED.
Mr. Plambeck MOVED to amend page 188, line 66, to insert "a" after "affects" and replace "rights" with "right." Mr. Dunn seconded.
A member said "affecting substantial rights" is common language used in case law. A member said the proposed language appears to indicate the error must affect more than one substantial right. The Chair said the term "substantial rights" is a term of art in deciding whether there has been harmless error or plain error. A member said the existing language
-22-
"affecting substantial rights" is better.
Mr. Plambeck MOVED to amend the motion to retain the existing language "affecting substantial rights" on page 188, lines 64-65, and to delete the text "if the error affects substantial rights" on lines 65-66. Mr. Dunn seconded. The motion to amend the motion CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 51 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 52, N.D.R.Civ.P., FINDINGS BY THE COURT (PAGES 192-199 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 52 were consistent with the federal form and style amendments and intended to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Judge Schneider MOVED to approve the proposed amendments to Rule 52. Judge Reich seconded.
Mr. Quick MOVED to amend page 195, line 44, to replace "10" with "15." The amendment retains the existing time period of 15 days for a party to file a motion to amend the findings and judgment. Mr. Dunn seconded. The motion to amend CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 52 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 53, N.D.R.Civ.P., MASTERS (PAGES 200-211 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 53 were consistent with the federal form and style amendments and intended to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Ms. Ottmar MOVED to approve the proposed amendments to Rule 53. Ms. McLean seconded.
The motion to approve the proposed amendments to N.D.R.Civ.P. 53 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
-23-
RULE 54, N.D.R.Civ.P., JUDGMENT; COSTS (PAGES 212-219 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to Rule 54 were consistent with the federal form and style amendments and intended to make the rule more easily understood and to make style and terminology consistent throughout the rules. Staff explained that subdivisions (d) and (e) are different from the federal rule; therefore, changes were based on general form and style principles.
Judge Kleven MOVED to approve the proposed amendments to Rule 54. Mr. Boschee seconded.
The motion to approve the proposed amendments to N.D.R.Civ.P. 54 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 55, N.D.R.Civ.P., DEFAULT; DEFAULT JUDGMENT (PAGES 220-227 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to Rule 55 were consistent with the federal form and style amendments and intended to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Ms. Ottmar MOVED to approve the proposed amendments to Rule 55. Judge Reich seconded.
Judge Greenwood MOVED to amend page 222, line 38, to delete the term "no" and insert "not" after "must." Ms. Ottmar seconded. The motion to amend CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 55 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 56, N.D.R.Civ.P., SUMMARY JUDGMENT (PAGES 228-240 OF THE AGENDA MATERIAL)
Staff explained that the proposed amendments to Rule 56 were consistent with the federal form and style amendments and intended to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Staff explained that the federal rule replaced "shall" with "should" in subdivisions (c), (d), and (e). The changes were also made to the state rule at page 231, line 31, page 232,
-24-
lines 47 and 48, and page 233, line 77. The Advisory Committee noted that although there is no discretion to enter summary judgment when there is a genuine issue as to any material fact, there is discretion to deny summary judgment when it appears that there is no genuine issue as to any material fact.
Judge McLees MOVED to approve the proposed amendments to Rule 56. Mr. Quick seconded.
A member asked why a court would deny summary judgment if there is no genuine issue as to any material fact. Staff explained the Advisory Committee cited Kennedy v. Silas Mason Co., 334 U.S. 249, 256-57 (1948), as authority for allowing a court to deny summary judgment if there is no issue as to a material fact. A member asked if there were any state cases saying that.
Mr. Boschee MOVED to amend by replacing "should" with the existing language of "shall" on page 231, line 31, page 232, lines 47 and 48, and page 233, line 77. Mr. Quick seconded. A member said the motion would retain existing practice. The motion to amend CARRIED.
Staff explained the federal rule is also scheduled to be amended effective December 1, 2009. The new amendments allow a party to move for summary judgment at any time, even as early as the commencement of the action. No action was taken by the Committee.
Mr. Boschee MOVED to amend page 231, line 35, to insert the text "upon reasonable notice and opportunity to respond" after the term "party." Mr. Quick seconded. A member asked what would be a reasonable opportunity to respond. A member said the proposed amendment seemed redundant. A member said a moving party has already had enough time to respond, because they are the moving party. The motion to amend FAILED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 56 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
The meeting adjourned at approximately 12:00 noon on September 25, 2009.
_________________________________
Andrew Forward