Joint Procedure Committee Meeting
Scheduled on Thursday, January 27, 1994 @ 9:00 AM
MINUTES OF MEETING
Joint Procedure Committee
January 27-28, 1994
TABLE OF CONTENTS
Preliminary Matters 2
Approval of Minutes 2
Petition for Adoption, Amendment, or Repeal of North Dakota's Procedural Court Rules 2
County Court Elimination 3
Administrative Rule 20-Magistrates-Qualifications, Authority, Education and Procedures 3
Rule 5, N.D.R.Crim.P.-Initial Appearance before the Magistrate 3
Rule 5.1, N.D.R.Crim.P.-Preliminary Examination 5
Rule 7, N.D.R.Crim.P.-The Indictment and the Information 8
Rule 12, N.D.R.Crim.P.-Pleadings and Motions before Trial; Defenses and Objections 9
Rule 37, N.D.R.Crim.P.-Appeal as of Right to District Court; How Taken 10
Appeal of Noncriminal Traffic Offenses 10
Rule 32, N.D.R.Crim.P.-Sentence and Judgment 10
Rule 45, N.D.R.Civ.P.-Subpoena 11
Enforcement of Rule 45 16
Rule 10, N.D.R.App.P.-The Record on Appeal 18
Rule 46, N.D.R.Crim.P.-Release from Custody 18
Rule 10, N.D.R.App.P.-The Record on Appeal 23
Rule 3, N.D.R.Civ.P.-Commencement of Action 23
Rule 3.2, N.D.R.O.C., and Motion Practice 24
Continuing Legal Education Credits for Attendance at JtPC Meetings 25
CALL TO ORDER
The meeting was called to order at approximately 9:00 a.m., January 27, 1994, by Justice Beryl Levine, Chairperson.
ATTENDANCE
Present:
Justice Beryl Levine
Honorable Gail Hagerty
Honorable Ronald Hilden
Honorable Lawrence Leclerc
Honorable James O'Keefe (1/27/94 only)
Honorable Kirk Smith
Honorable James Wright
Professor Larry Kraft
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Ms. Patricia Ellingson
Mr. Robert Heinley
Mr. John Kapsner
Mr. Dwight Kautzmann (1/27/94 p.m. and 1/28/94 only)
Mr. Ronald McLean
Mr. James Odegard
Ms. Cathy Howe Schmitz
Absent:
Honorable Wallace Berning
Honorable Bruce Bohlman
Honorable Gerald Glaser
Mr. Jim Lamb
Mr. David Peterson
Staff:
Mr. Gerhard Raedeke
PRELIMINARY MATTERS
Committee membership was reviewed. Mr. Lamb, Mr. McLean, Mr. Odegard, and Ms. Schmitz have been appointed for another three-year term, which will expire December 31, 1996. Judge Glaser and Mr. Peterson have resigned from the Committee.
The Committee was informed that the next meeting will be on April 28-29, 1994.
APPROVAL OF MINUTES (PAGES 1-23 OF THE AGENDA MATERIAL)
Mr. Odegard MOVED that the minutes of the Joint Procedure Committee meeting of September 23-24, 1993, be approved as submitted. Professor Kraft seconded. Motion CARRIED.
PETITION FOR ADOPTION, AMENDMENT, OR REPEAL OF NORTH DAKOTA'S PROCEDURAL COURT RULES (PAGES 24-25 OF THE AGENDA MATERIAL)
Staff reviewed the action taken by the Supreme Court in regard to the Committee's June 30, 1993 petition. The Supreme Court approved all of the proposed amendments, except for the proposed amendment to Rule 45 and 34, N.D.R.Civ.P. The Court instructed that the Committee use the guidelines in the "North Dakota Legislative Drafting Manual" regarding usage of the words "shall" and "must."
The Committee was concerned that meeting time would be wasted discussing whether "shall" or "must" is the correct word
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choice. Staff was instructed to insert the correct word after each meeting to save time.
The Supreme Court also instructed that both the Joint Procedure Committee and the Court Services Administration Committee have responsibility for the North Dakota Supreme Court's administrative rules. Section 8.1(a)(ii), NDRPR, provides that the Joint Procedure Committee is responsible for "Specialized Court Proceeding Procedures."
COUNTY COURT ELIMINATION
The North Dakota county courts will be eliminated effective January 1, 1995. The Committee continued work on the necessary amendments in response to county court elimination.
ADMINISTRATIVE RULE 20 - MAGISTRATES - QUALIFICATIONS, AUTHORITY, EDUCATION AND PROCEDURES (PAGES 26-27 OF THE AGENDA MATERIAL)
At the last meeting, the Committee had concerns as to who would appoint magistrates after county court elimination. Staff reported that the Court Services Administration Committee is going to petition the Supreme Court to amend Administrative Rule 20. The proposal will provide that the presiding judge of the judicial district may appoint magistrates. Appointment of magistrates by the presiding judge of the judicial district is consistent with this Committee's recommendations from the last meeting.
At the last meeting, the Committee also had concerns about the duties listed in Administrative Rule 20, Section 5. Committee members questioned whether the duties should be delegated to nonlaw-trained magistrates. Nonlaw-trained magistrates may not understand probable cause and rely on law enforcement officers and the prosecution for determining whether there is probable cause to issue a search warrant or an arrest warrant. Other Committee members commented that nonlaw-trained magistrates must be used in rural counties due to a shortage of law-trained people. Likewise, many municipal judges are not law-trained, and they issue warrants. Other Committee members noted that geography may become less of a factor with increased use of facsimile machines.
Section 12 of Administrative Rule 20 contains continuing education requirements. The Committee instructed staff to recommend that magistrates receive training on probable cause.
RULE 5, N.D.R.Crim.P. - INITIAL APPEARANCE BEFORE THE MAGISTRATE (PAGES 28-39 OF THE AGENDA MATERIAL)
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At the last meeting, the Committee instructed that a provision be inserted in subdivision (a) clarifying that there must be a prompt determination of probable cause in warrantless arrest cases. The amendment is in response to County of Riverside v. McLaughlin, 111 S.Ct. 1661 (1991), and Gerstein v. Pugh, 95 S.Ct. 854 (1975).
The Committee discussed the proposed amendment to subdivision (c). The question arose as to when an unrepresented defendant may plead if the defendant wants to waive the preliminary examination and plead guilty. ordinarily, because counsel will not be at the initial appearance, the defendant usually will not be able to plead until the second appearance. At the preliminary examination, even if the defendant does not have an attorney, the defendant will be allowed to waive the preliminary examination. The court will then be able to go directly from the preliminary examination to arraignment. No delay will be necessary because the defendant will already be in district court. However, the arraignment may still be conducted at a separate time.
On page 30, the Committee questioned the proposed sentence on lines 69 through 73. The clerk of court will schedule the arraignment, not a magistrate.
Mr. McLean MOVED to adopt Rule 5 as set forth on pages 28 through 31 with the substitution of the phrase "an arraignment must be scheduled," instead of the phrase "the magistrate shall schedule an arraignment" on lines 69-73. Mr. Odegard seconded. Motion CARRIED.
The Committee considered the explanatory note to Rule 5 on page 31 through 39. Committee members stated that there is more of a need to cite cases in the explanatory notes to the Rules of Criminal Procedure than the Rules of Civil Procedure. The explanatory notes to the Rules of Criminal Procedure are used by pro se defendants. The Committee decided that State v. Newnam, 409 N.W.2d 79 (N.D. 1987), should be cited to replace the extended discussion of the McNabb, 63 S.Ct. 1322 (1943), and Mallory, 77 S.Ct. 1356 (1957), decision on pages 31 through 34.
Committee members questioned why the terminology "preliminary examination" is being used instead of the phrase "preliminary hearing" in the Explanatory Note to Rule 5. Judge Leclerc MOVED to amend all the rules and all the explanatory notes to conform with every day usage by deleting the words "preliminary examination" and substituting the words "preliminary hearing." Mr. Heinley seconded. Other Committee members did not think the substitution would accomplish a significant purpose. The motion was withdrawn.
On line 250, the Committee thought that State v. Iverson, 187 N.W.2d 1, 34 (N.D. 1971), should be cited in addition to Coleman v. Alabama, 90 S.Ct. 1999 (1970). The North
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Dakota Supreme Court has held that the preliminary examination is a critical stage, and that the right to counsel exists at the preliminary examination.
The Committee reviewed the source note on page 39, and noted that many of the sources are outdated. Committee members commented that the only sources that should be referenced are the minutes of the Joint Procedure Committee. References to treatises will continue to become outdated.
Mr. Kapsner MOVED to amend the source note to delete lines 318-323, and to eliminate the page numbers of the minutes. Judge Hilden seconded. The Committee discussed the significance of citing the page numbers of the minutes. Citing the pertinent pages of the minutes in the source note will make it easier to locate the needed material. Motion failed.
Mr. McLean MOVED that the Committee adopt lines 312 through 318, with a period after "pages 7-9" on line 318, and that the remainder of lines 318-323 be deleted. Judge Smith seconded. Motion CARRIED.
Ms. Schmitz MOVED to adopt the entire explanatory note to Rule 5 with the changes approved by the Committee. Motion carried.
RULE 5.1, N.D.R.Crim.P. - PRELIMINARY EXAMINATION (PAGES 40-55 OF THE AGENDA MATERIAL)
The Committee considered the proposed amendment to subdivision (a). The Committee recommended changing the first sentence of subdivision (a) to provide as follows:
"If it appears from the evidence that there is probable cause to believe that an offense has been committed and that the defendant committed it the maqistrate shall forthwith hold the defendant to answer in a trial court of the county having jurisdiction of the offense, an arraignment must be scheduled."
The reason for the change is that the defendant will already be in a trial court having jurisdiction of the offense. Also, the arraignment will be scheduled by the clerk of court and not the magistrate.
The Committee discussed the proposed sentence on lines 11 through 12 which provides as follows: "The finding of probable cause may be based upon hearsay evidence in whole or in part." The proposed language is from Rule 5.1(a), Fed.R.Crim.P. In State v. Morrissey, 295 N.W.2d 307, 311 (N.D. 1980),and Schiermeister v. Riskedahl, 449 N.W.2d 566 (N.D. 1989), the North Dakota Supreme Court recognized that hearsay evidence is admissible in a preliminary examination. However,
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the question as to whether the finding of probable cause may be based entirely on hearsay was not answered.
Committee members suggested that the finding of probable cause may already be based entirely on hearsay, if one considers the explanatory note to Rule 5.1 and the other rules of procedure. The Committee noted that Rule 1101, N.D.R.Ev., provides that the Rules of Evidence do not apply to the preliminary examination. Rule 5.1 also provides that the magistrate may receive evidence that would be inadmissible at the trial. The explanatory note to Rule 5.1 provides that the definition of probable cause required at the preliminary examination is similar to that required to issue an arrest warrant in Rule 4, N.D.R.Crim.P. In addition, in State v. Morrisey, 295 N.W.2d 307, 311 (N.D. 1980), the court said that the term "probable cause" has the same meaning in the context of a decision to hold a defendant for trial as it does in determining legitimacy of arrest. Rule 4(a)(1), N.D.R.Crim.P., provides as follows:
"The finding of probable cause shall be based upon evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished."
Some Committee members argued that the standard for probable cause for arrest and the standard for probable cause at the preliminary examination should be different. It is unfair for a magistrate to rely exclusively on hearsay when finding probable cause.
Other Committee members commented that at the preliminary examination, a police officer will often simply recite what he or she has been told. Reliance upon hearsay makes the process simpler and avoids disclosure. Also, it is in the discretion of the judge to demand more evidence in order to evaluate the credibility and reliability of the information being furnished.
The Committee noted that whether the finding of probable cause may be based entirely on hearsay is not a constitutional issue. Other Committee members commented that if the Committee does not adopt the proposed amendment, the Committee's action will be interpreted as meaning that a finding of probable cause may not be based entirely upon hearsay.
Mr. Kapsner MOVED to amend the first sentence of subdivision (a) on line 8 as follows: "If it appears from the evidence that there is probable cause to believe that an offense has been committed and that the defendant committed it, an arraignment must be scheduled." Mr. Kapsner also moved to delete the language on lines 11 and 12 providing: "The finding
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of probable cause may be based upon hearsay evidence in whole or in part." Judge Leclerc seconded. Motion FAILED.
Ms. Schmitz MOVED that Rule 5.1(a) be adopted as follows:
"(a) Probable Cause Finding. If it appears from the evidence that there is probable cause to believe that an offense has been committed and that the defendant committed it, the magistrate shall forthwith hold the defendant to answer in a trial court of the county having jurisdiction of the offense an arraignment must be scheduled. The finding of probable cause may be based upon hearsay evidence in whole or in part. The defendant may cross-examine adverse witnesses and may introduce evidence. The magistrate may receive evidence that would be inadmissible at the trial. Motions to suppress must be made to the trial court as provided in Rule 12."
Mr. Odegard seconded. Motion CARRIED.
Committee members questioned the sentence on lines 16 to 17 which provides as follows: "Motions to suppress must be made to the trial court as provided in Rule 12." Committee members questioned why this sentence is in Rule 5.1 and if the time for making motions to suppress should not be stated more precisely. The stage at which suppression motions may be made should be specified, rather than citing a rule. Motions to suppress should be made post-arraignment. Ms. Schmitz MOVED to delete the sentence on lines 16 through 17. Judge O'Keefe seconded. Motion CARRIED.
The Committee reviewed subdivision (b). Subdivision (b) was approved by the Committee at the last meeting.
The Committee considered the proposed amendment to subdivision (c). Mr. Odegard MOVED to adopt subdivision (c) as amended on pages 41 and 42. Judge Smith seconded. Motion CARRIED. Papers will no longer need to be transmitted to a trial court having jurisdiction, because the preliminary examination will be held in district court instead of county court.
Committee members questioned the sentence on lines 39 through 42 which provides as follows:
"A verbatim record of the proceedings in a preliminary examination must be made under the direction of the magistrate if a request therefore is made by either the State or the defendant."
Because of this language, some attorneys feel they have to ask for a record to be made of the preliminary examination. The
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preliminary examination is automatically recorded because it takes place in a court of record. The danger is that the language implies that a record is not needed unless a request therefore is made. Committee members commented that the words "verbatim record" means a transcript. A transcript doesn't have to be prepared unless one is requested. Ms. Schmitz MOVED to delete lines 39 through 42. Judge Leclerc seconded. Motion CARRIED.
The Committee considered the sentence on lines 45 through 49 which provides as follows:
"If a transcript is requested by the defendant, the cost of the transcript and related costs must be borne by the State if the magistrate finds that the defendant is financially unable to pay for it without undue hardship."
Committee members commented that undue hardship is not the same standard as the standard for determining indigency. Indigency is based on a numerical calculation. Generally if you have a court-appointed attorney you also get a free transcript. Other Committee members commented that a person who is not indigent, may not be able to come up with the money immediately for a transcript without undue hardship. No motion was made regarding lines 45 through 49.
The Committee considered the explanatory note to Rule 5. 1 on pages 42 through 46. The Committee questioned whether the language on lines 66 through 74 discussing probable cause is necessary. The Committee noted that keeping explanatory notes current with case law is very labor intensive, and that Michie's publication of the North Dakota Court Rules is already annotated. Mr. Kapsner MOVED to delete lines 66 through 74, but to keep the citation to State v. Morrisey in the explanatory note. Ms. Schmitz seconded. Motion CARRIED. Committee members commented that if this citation is left in the explanatory note it will incorrectly relate to the preceding sentence. Mr. Kapsner MOVED to eliminate the citation to State v. Morrisey on line 70. Judge Leclerc seconded. Motion CARRIED.
Ms. Schmitz MOVED to adopt the remainder of the explanatory note to Rule 5.1 as amended, but with the elimination of the sources after "page 2" on line 167. Mr. Odegard seconded. Motion CARRIED.
RULE 7, N.D.R.Crim.P. - THE INDICTMENT AND THE INFORMATION(PAGES 56-64 OF THE AGENDA MATERIAL)
The Committee considered the letter from Judge Dill concerning court consolidation on page 56-57. The Committee affirmed its previous position that complaints and informations should both be used after court consolidation.
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The Committee considered the proposed amendment to Rule 7 on page 58 through 60. The amendment allows misdemeanors and felonies to be tagged together in an information. The Committee commented that the phrase "and other prosecutions" on line 8 refers to noncriminal infractions. Appeals from municipal court will be by complaint, because that will still be the charging document and appeals are de novo. Noncriminal infractions may be handled by formal complaint.
The Committee discussed Section 29-01-01, N.D.C.C., which provides that every public offense must be prosecuted by information or indictment unless the public offense is one that may be tried in municipal court. The Committee noted that complaints are currently used in district court in misdemeanor cases, and that in State v. Buehler, 125 N.W.2d 155 (N.D. 1963), the court held that an information and a complaint are equivalent instruments.
Committee members questioned whether the word "complaint" should be listed in the title to Rule 7, and whether there should be a discussion of complaints in the explanatory note as with the indictment and the information. The Committee noted that Rule 3, N.D.R.Crim.P., deals primarily with the complaint, and that Rule 7 is still dealing primarily with the information. No motion was made.
The Committee noted that the proposed amendment to Rule 7 was approved by the Committee at the last meeting. Ms. Schmitz MOVED to adopt the explanatory note to Rule 7 as proposed, but with the deletion of the citations to treatises in the source note. Judge Wright seconded. Motion CARRIED.
RULE 12, N.D.R.Crim.P. - PLEADINGS AND MOTIONS BEFORE TRIAL; DEFENSES AND OBJECTIONS (PAGES 65-69 OF THE AGENDA MATERIAL)
The Committee approved the proposed amendment to Rule 12 at the last meeting. The Committee discussed whether language should be inserted in Rule 12 specifying when a motion may be made to suppress evidence. The Committee agreed that motions to suppress should only be made after entry of a plea. There is no reason to suppress evidence until one knows that there is going to be a trial. Committee members suggested adding a sentence on line 14 to provide as follows: "Motions to suppress must be made after entry of a plea."
Some Committee members argued that Rule 12(c) already provides that motions to suppress must be made after arraignment. Other Committee members argued that subdivision (c) is not that clear. Judge Hagerty MOVED to add the following sentence on line 14: "Motions to suppress must be made after entry of a plea." The motion CARRIED.
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The Committee reviewed the explanatory note to Rule 12 on pages 65 through 69. Judge Leclerc MOVED to adopt the explanatory note as proposed on page 65 through 69, with the deletion of the word "simple" on line 39 and the deletion of the sources after "pages 4-6" on line 122. Mr. Odegard seconded. Motion CARRIED.
RULE 37, N.D.R.Crim.P. - APPEAL AS OF RIGHT TO DISTRICT COURT; HOW TAKEN (PAGES 70-77 OF THE AGENDA MATERIAL)
The amendment to subdivision (g) was approved by the Committee at the last meeting. Mr. McLean MOVED to adopt the explanatory note as proposed, but with the deletion of references to sources other than the minutes of the Committee in the source note. Other Committee members noted that the explanatory note contains citations to Moore's Federal Practice that are outdated. The Committee instructed staff to amend the explanatory note so that it does not contain obsolete citations.
APPEAL OF NONCRIMINAL TRAFFIC OFFENSES (PAGES 78-80 OF THE AGENDA MATERIAL)
At the last meeting, the Committee expressed concern about Section 39-06.1-03, N.D.C.C. As amended, the statute provides for appeal of a district court judge's finding in a noncriminal traffic case to another district court judge for trial anew. See Op. Att'y. Gen. 93-17 (1993). Staff explained that the Legislative Council's Court Services Interim Committee is working on a solution. The interim committee is going to propose legislation that will authorize a district court judge to appoint a person to serve as an official who may conduct the initial noncriminal traffic proceeding. It was suggested that if individual members of the Committee have further concerns that they address their concerns to Representative John Mahoney, Chair of the Interim Court Services Committee.
RULE 32, N.D.R.Crim.P. - SENTENCE AND JUDGMENT (PAGES 81-83 OF THE AGENDA MATERIAL)
At the last meeting, the Committee had questions about Rule 32(f)(1). The Committee questioned whether costs incurred in bringing the probationer before the court must be borne by the county wherein the probation was granted after court consolidation. Staff explained that Rule 32 superseded 12-53-15, N.D.C.C. The statute previously contained the language that is now in the rule. It was also noted that extradition costs in 29-30.3-26, N.D.C.C., were not affected by court consolidation. The Committee decided that if the Legislature is concerned about cost provisions in the Rule, the Legislature can pass a statute.
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RULE 45, N.D.R.Civ.P. - SUBPOENA (PAGES 84-98 OF THE AGENDA MATERIAL)
On November 17, 1993, the Supreme Court ordered that proposed Rule 34 and 45, N.D.R.Civ.P., and their explanatory notes be returned to the Committee for further review. The Court disliked the complexity of the proposed language that was taken from the Federal rule.
One of the criticisms of the Court was that the words "production, inspection and copying" are not used consistently throughout the rule. At times, it is not clear whether the rule is meant to apply to both production and inspection. The Committee decided that the word "copying" needs to be used in addition to production and inspection. Otherwise, it may not be clear that production and inspection encompasses copying. The Committee instructed staff to review Rule 45 and use the words "production, inspection and copying" consistently throughout the rule.
The Committee studied lines 109 through 120. Lines 109 through 120 concern the distance a witness may be required to travel to attend a deposition. The language is patterned after North Dakota's current Rule 45. The proposal eliminates the cross-referencing of the federal rule and is consolidated into one paragraph.
Some Committee members suggested that the proposed language may mislead someone into thinking that a subpoena may be served out of state. Other Committee members noted that subdivision (b), lines 49 and 50, provide that a subpoena may only be served within the state.
Committee members questioned why a distinction should be made between residents and nonresidents. Committee members suggested requiring all persons to attend a deposition within 100 miles from the place of service or in the county in which the subpoena is served. Other members argued that a resident should only be required to attend a deposition in the county where the person resides, is employed or transacts business in person. Otherwise, a Bismarck resident could be required to attend a deposition in Fargo if the person was served in Fargo.
Some Committee members noted that litigation costs could be reduced by having the witness travel rather than having the attorneys travel. Other Committee members commented that subpoenas are served on nonparties, and that the expense and burden on nonparties should be kept to a minimum.
Committee members suggested that a nonresident should be required to attend a deposition in any county of the state. Rule 45.04, Minn.R.Civ.P., requires a nonresident of the state to attend in any county of the state.
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Mr. McLean MOVED to amend the sentence starting on line 113, so that it provides as follows: "A nonresident of this state may be required by subpoena to attend a deposition in any county of the state." Mr. Kapsner seconded. Motion CARRIED.
Committee members instructed staff that the language "inspection, production and copying" is not to be included on lines 109 through 120. Those lines pertain only to depositions, hearings or trial. Production, inspection and copying is dealt with in subdivision (c)(2).
Staff explained that the overstruck language on lines 121 through 164 is language from the federal rule that was criticized by the Supreme Court. The overstruck language is required to be printed on a subpoena to advise the person being subpoenaed of their rights and duties. The Court was critical. The language is so complex that the person receiving the subpoena will not understand his or her rights and duties.
Lines 165 through 189 were proposed by staff as an alternative to the language patterned after the Federal rule on lines 121 through 164. Staff explained that the proposal on lines 165 through 189 consolidates subparagraph (a) and (b) on pages 90 and 91. The only clause eliminated is clause (iv) on lines 140 through 142, because it is questionable whether privileged material can be ordered disclosed.
The Committee reviewed the federal rule on page 84 and 85. The Committee questioned what the drafters of the Federal rule were attempting to accomplish by having separate subdivisions (c)(3)(a) and (c)(3)(b). Committee members argued that subdivision (c)(3)(a) is mandatory, while subdivision (c)(3)(b) is discretionary. After reviewing the Federal comments, the Committee questioned whether a mandatory/discretionary distinction can be made between subdivision (c)(3)(a) and subdivision (c)(3)(b). The Committee noted that subdivision (c)(3)(a) is also discretionary, even though subparagraph (a) uses the language "shall," because clause (i) and (ii) use the term "reasonable" and "undue" which gives the court discretion. Clause (ii) is cross-referenced into subdivision (c)(3)(b) to give the court discretion. Only under clause (iii), regarding disclosure of privileged material, is there no discretion with the court. However, in some instances, the court may have discretion to order disclosure of privileged information. For instance, Rule 507, N.D.R.Ev., defines trade secrets as privileged material that may be disclosed.
The Committee also noted that while subdivision (c)(3)(b) seems to be discretionary through the use of the word "may", the explanatory note indicates that the court "should" quash a subpoena falling under clauses (i), (ii) and (iii).
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Committee members commented that the difference between subdivision (c)(3)(a) and subdivision (c)(3)(b) may be that under the first subparagraph, the court can quash or modify by striking, while under the second subparagraph a judge can add conditions to modify the subpoena. Other Committee members argued that the court should have discretion to add conditions under subdivision (c)(3)(a). For example, the court should have authority to add conditions to alleviate the undue burden imposed by a subpoena without quashing the subpoena.
The Committee concluded that if there is a distinction between subdivision (c)(3)(a) and (c)(3)(b) on page 85, the distinction is not apparent. The Committee also concluded that the language combining the two subparagraphs on page 92 is preferable to the language in the Federal rule.
The Committee discussed lines 184 through 189 on page 92. The Committee questioned whether "substantial need" and "undue hardship", is the appropriate standard for modifying a subpoena. The Committee also questioned whether substantial need would be the appropriate test for disclosure of privileged material. Rule 507, N.D.R.Ev., does not set forth a standard for determining when trade secrets are to be disclosed.
Committee members commented that by adding provisions for protection from discovery in Rule 45, the law is being complicated by layering rules on the same subject. Rule 507, N.D.R.Ev., and Rule 26 already define the scope of discovery and provide protection.
The Committee noted the comments to the Federal rule. The comments indicate that the protective provisions in the Federal rule are not intended to change the scope of discovery under Rule 26. The provisions are in Federal Rule 45 for the purpose of being printed on the subpoena to advise the subpoenaed person of his or her rights and duties.
The Committee reviewed Rule 26, N.D.R.Civ.P. Committee members noted that Rule 26(c) provides that a protective order may be issued for good cause shown. Rule 26(b) uses an exceptional circumstances test for trial preparation - experts who are not expected to be called as witnesses at trial; Rule 26(b) uses a substantial need and undue hardship test for discovery of trial preparation - materials.
Committee members pointed out that the exceptional circumstances test in Rule 26(b)(4) applies to an expert who is retained, but not expected to be called as a witness at trial. Committee members commented that the "exceptional circumstances" test is a tougher standard than the "substantial need and undue hardship" test in proposed Rule 45. Committee members questioned the need for having the "substantial need" and "undue hardship" test on lines 184 through 189. Rule 26 already contains discovery standards.
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Mr. McLean MOVED to delete lines 184 through 189, and to make a note in the explanatory note that Rule 26 is not intended to be altered by the revision of Rule 45. A reference to Rule 26 needs to be included in Rule 45's explanatory note to explain that the scope of discovery and the test for determining whether protection should be granted under Rule 26 is not intended to be changed. Ms. Schmitz seconded. Motion CARRIED.
The Committee reviewed the clauses on page 91 and 92, which concern when a subpoena must be quashed or modified. Committee members commented that there should not be any discussion of privilege in Rule 45. Privilege is a complicated body of law that is already defined in two places, Rule 26, N.D.R.Civ.P., and Rule 507, N.D.R.Ev. Privilege is too complicated a body of law to be handled by one clause in Rule 45. The Committee was also concerned about creating inconsistencies with existing law. Mr. McLean MOVED that a clause regarding privilege not be inserted as clause (vii) on page 92 as had been suggested earlier. Ms. Schmitz seconded. Motion CARRIED.
The Committee questioned whether all the clauses on pages 91 and 92 are covered elsewhere. Committee members argued that clause (iv) concerning trade secrets should be deleted. Trade secrets are covered under Rule 507, N.D.R.Ev. and Rule 26, N.D.R.Ev. The Committee decided that clause (i) and (ii) on page 92 are not covered elsewhere and should remain in Rule 45.
Ms. Schmitz MOVED to delete clauses (iv) and (v) on page 92. Mr. Kapsner seconded. Committee members commented that clause (v) is addressed to an unretained expert while Rule 26 pertains to an expert that has been hired. Ms. Schmitz MOVED to amend her motion to keep clauses (i), (ii), and (iii) and (v), and to eliminate clause (iv) and (vi). Mr. Kapsner seconded. The Committee thought that clause (iii) and (vi) are duplicative. Motion CARRIED.
The Committee considered the proposed notice contained in subdivision (f) on lines 212 through 233 on pages 93 and 94. The purpose of the notice is to advise a layperson of their right to object and the procedure for objecting. The question was raised as to how a layperson will know whether documents are privileged, and that they must include a description of the nature of the documents when making an objection based on privilege. The danger is that if an objection is improperly made, the layperson may waive their claim of privilege.
Committee members commented that they have no sympathy for laypersons acting on their own without the advice of an attorney. Other Committee members commented that the layperson who receives a subpoena is often not a party and they need to be protected.
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Some Committee members suggested including a form that the person being subpoenaed could sign in order to object. Other Committee members were concerned about the subpoena process being undermined by making it too easy to object. Committee members were concerned about people making groundless objections for the purpose of nullifying a subpoena when the return date on the subpoena does not allow sufficient time to get a court order. Committee members suggested that the right to object should be limited to pretrial or prehearing production and inspection. Otherwise an objection will have the effect of cancelling the trial or the hearing, or the party will not be able to get the needed information due to insufficient return time.
Committee members argued that people should be required to explain why they are objecting. Committee members commented that the reason people will give for objecting is that they are too busy or that they do not want to attend. Committee members suggested changing line 231 through 233 to require a "valid reason" for objecting. Committee members questioned how a layperson is to know whether their objection is valid and whether the terminology "valid objection" means that the person must prevail at the hearing.
Mr. McLean MOVED that line 231-233 be amended to provide as follows: "Failure to obey this subpoena without making a timely objection, and stating a valid reason, may be deemed contempt of court." Ms. Schmitz seconded. A vote was not called on the motion. Committee members argued that an objection should not be required to be "valid." A "valid" objection is one that prevails. Other Committee members noted that the court will have discretion as to whether to impose contempt sanctions.
Committee members suggested that an objection should be required to be received at least 24 hours before the time specified for compliance. Committee members also argued that 14 days is too long a period to allow for making an objection. Committee members suggested that only 7 days should be allowed for making an objection. Other Committee members argued that 7 days is not a long enough time period. If the objection is to be "received" within 7 days after service of the subpoena, the witness may only have 4 days to get the objection to the attorney seeking discovery. The Committee agreed to a 10 day time period because 3 days are not added for mailing. The rule as amended will require objections to be "received" in 10 days. Committee members noted that cutting the number of days for objecting from 14 days to 10 days is a significant reduction. Ten days is actually less than 10 days because the party objecting will need to allow for mailing time. Mr. McLean MOVED to amend subdivision (f) with the changes following:
"(f) Notice. All subpoenas commanding pretrial or prehearingproduction, inspection or copying must
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contain the following notice: 'You may object to this subpoena by mailing or delivering a written objection, stating your valid reason, to [insert the name and address of the party, or attorney representing the party seeking production, inspection or copying]. Any objection must be made received within 14 10 days after the date on which the subpoena was mailed or delivered. If the time specified in the subpoena for compliance is less than 14 10 days, any objection must be received at least 24 hours before the time specified for compliance.
If you make a timely objection, you do not need to comply with this subpoena unless the court orders otherwise. You will be notified if the party serving the subpoena seeks a court order compelling compliance with this subpoena. You will then have the opportunity to contest enforcement.
Failure to obey this subpoena, without making a timely objection and stating a valid reason, may be deemed contempt of court."
Ms. Schmitz seconded. Motion CARRIED. Committee members noted that staff will need to change subparagraph (b) on page 89 so that it is consistent with the requirement that objections be "received" within "10" days on page 94.
Ms. Schmitz MOVED to adopt Rule 45 with the changes approved by the Committee. Mr. Odegard seconded. Motion CARRIED. The Committee thought that the proposed amendment to Rule 45 was much better than the previous proposal and the existing rule. Committee members noted that the notice is going to invite objections. However, requiring a valid reason with the possibility of contempt will ensure that objections are not made frivolously.
The Committee considered two explanatory notes to Rule 45. The longer version on page 95 through 97 explains what happened to the previous subdivisions. The shorter version of Rule 45 simply highlights the significant changes accomplished by revision of Rule 45. Committee members noted that the shorter explanatory note will be easier to amend when Rule 45 is amended in the future.
Judge Hagerty MOVED to adopt the explanatory note on page 98 with the addition of the language following: "The scope of discovery under Rule 26 is not intended to be altered by the revision." Professor Kraft seconded. Motion carried.
ENFORCEMENT OF RULE 45 (PAGES 99-103 OF THE AGENDA MATERIAL)
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The Committee reviewed the provisions in Rule 26, Rule 30, Rule 45, and Rule 37, N.D.R.Civ.P., which concern the appropriate court for enforcement of a subpoena. Some Committee members commented that the appropriate court should only be the court where the action is pending. The court in the district where the production, inspection, copying or deposition is being held may not know anything about the action. Other Committee members commented that it is unfair to require a nonparty deponent to travel where the action is pending. A deponent who is a nonparty should be allowed to go to the court in his or her own county. Parties will always go to the court where the action is pending because that is the court that will be familiar with the action.
Committee members commented that only the judge where the action is pending should be allowed to impose sanctions. Sanctions should be the call of the home plate umpire. Other Committee members said that depositions need to be treated differently than productions, inspections, or copying because of the need for immediate court intervention. The court where the action is pending should allow parties to call in with objections during depositions. Other Committee members commented that very seldom have they been able to get a court to rule on objections immediately during a deposition.
Under proposed Rule 45, the appropriate court to obtain an order compelling production, inspection or copying is the court where the action is pending. This raises a question as to where a motion should be made regarding a subpoena duces tecum. Committee members commented that an objection that arises prior to the deposition which concerns the documents being sought in a subpoena duces tecum should be made to the court where the action is pending. An objection arising during the course of a deposition can be made to the court in the district where the deposition is being taken or the court where the action is pending.
Committee members noted that Rule 37(a)(1) uses the language "where the deposition is being taken." Committee members interpreted this language to mean a deposition in progress rather than a preliminary matter. Other Committee members commented that the phrase "is being taken" is not that clear. The language may be referring to a deposition currently in progress or a deposition that is being taken next week.
Mr. Kapsner MOVED to approve Rule 37 as proposed on page 101 through 102. Ms. Schmitz seconded. Motion CARRIED. Ms. Schmitz MOVED to adopt the explanatory note as proposed on pages 102 through 103. Professor Kraft seconded. Motion CARRIED. The amendment was made to achieve consistency with Rule 45. Currently, Rule 37 does not address where the party seeking discovery may move for an order when the deponent is a nonparty and the discovery dispute does not involve a deposition.
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RULE 10, N.D.R.APP.P. - THE RECORD ON APPEAL (PAGES 104-111)
Staff explained that court reporters are not getting adequate time for completion of the transcript under Rule 10, N.D.R.App.P., due to a violation of the rule by attorneys. Rule 10(c) requires court reporters to complete the transcript within 50 days after notice of appeal is filed. However, court reporters cannot start preparing the transcript until the order for transcript is received. Rule 10(b) provides that the proof of service of the order for transcript must be filed with the notice of appeal. The problem is that attorneys are not ordering the transcript until after filing the notice of appeal. Court reporters then get less than 50 days for preparation of the transcript.
The Committee considered the proposal to amend Rule 10 on pages 105-108. Committee members questioned whether allowing the order for transcript to be filed within 10 days after filing the notice of appeal will delay the appeal process. Other members argued that it would not delay the appeal process because currently court reporters end up having to ask for an extension. Furthermore it is unfair to place the burden of requesting an extension of time on court reporters when the delay is caused by an attorney's failure to order the transcript. Committee members suggested that the Supreme Court needs to sanction violations of the rule. Other members commented that discretion needs to be exercised as to the sanction. It is unfair to punish the litigants by dismissing their appeal due to a rule violation by their attorney. There are too many different time deadlines subjecting attorneys to potential malpractice claims. Mr. Kautzmann MOVED to adopt Rule 10 as proposed on pages 105 through 108 of the agenda material. Judge Hagerty seconded. Motion CARRIED. Judge Hilden MOVED to adopt the explanatory note as proposed on pages 108 through 111. Judge Smith seconded. Motion CARRIED.
RULE 46, N.D.R.Crim.P. - RELEASE FROM CUSTODY (PAGES 112-168 OF THE AGENDA MATERIAL)
The Committee discussed the constitutionality of preventative detention. The consensus of the Committee was that preventative detention is unconstitutional under Art. I, § 11 of the North Dakota Constitution. The considered view of the Committee is that North Dakota's Constitution needs to be amended to allow for preventative detention. Imposing conditions upon release will not reasonably assure the safety of any other person and the community. The Committee agreed to consider whether conditions designed to assure the safety of any other person and the community should be allowed to be imposed upon pretrial release.
The meeting recessed at approximately 4:30 p.m.
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JANUARY 28, 1994, FRIDAY
Justice Levine reconvened the committee at approximately 9:00 a.m.
The Committee considered amending Rule 46, N.D.R.Crim.P., to authorize conditions on release designed to assure the safety of any other person and the community. The Committee reviewed the Federal bail statute, 18 U.S.C. § 3142, and the rules or statutes of North Dakota's neighboring states. The Committee noted Minnesota's Rule 6.02(l) which provides in pertinent part as follows:
"In any event, the Court shall also fix the amount of money bail without other conditions upon which the defendant may obtain release."
Minnesota's advisory committee was of the opinion that this provision is required by the defendant's constitutional right to bail.
The Committee considered the proposal on page 160 through 165 which allows a magistrate to impose conditions upon release which are designed to assure the safety of any other person and the community. The conditions in the proposal are the same conditions that are authorized to be imposed upon release for the safety of others in the Federal bail statute.
The Committee noted that subparagraph (j) may be more intrusive upon one's liberty interests than preventative detention. Committee members argued that imposing conditions upon release would be placing conditions on constitutionally protected activities, which is why Minnesota probably requires bail without conditions as an alternative.
Other Committee members noted that the conditions being proposed are already being used. Rule 46(a)(1)(i)(e) allows a magistrate to impose any condition deemed reasonably necessary to assure the appearance of the person.
Some Committee members suggested giving the accused the option of accepting conditions upon release. The accused would be offered reasonable bail, and an offer of lower bail if the accused would accept conditions. Other Committee members argued that the Federal approach should be used. If there is a problem with letting out the accused on personal recognizance, then conditions should be imposed.
Committee members questioned how conditions upon release could be unconstitutional when they are in the Federal rule. Other members countered by saying that North Dakota's constitution makes all crimes bailable except for capital offenses. The federal constitution does not prevent bail from being denied.
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Committee members commented that North Dakota's current rule already allows conditions to be imposed upon release. Staff explained that the proposal allows conditions to be imposed to protect the safety of others in addition to assuring the appearance of the accused. Committee members said that the proposal really only expresses what actually happens in practice. Committee members also added that the conditions really do not protect the safety of others.
Committee members argued that once you start talking about the safety of the community you take away the presumption of innocence. Imposing conditions to ensure the safety of others will telegraph to the community that the person is dangerous and therefore guilty. For a judge to impose conditions, the judge will have to determine that the person is dangerous even though the person is presumed innocent. Once the news hits the press that a judge has imposed conditions because the judge thinks the person accused is dangerous, the jury will think the accused is guilty. If a person is innocent, the community does not need to be protected. A judge should never put in an order that he or she is placing conditions upon release to protect the safety of the community.
Other Committee members argued that the presumption of innocence belongs in the courtroom. The presumption is not intended to protect the defendant's reputation in the community. Other members disagreed and said that the presumption of innocence is designed to protect a defendant's reputation in the community.
Committee members argued that imposing conditions does not infringe upon the presumption of innocence. Arresting and charging the person is what is prejudicial in the community, it's not the bond that prejudices a person's presumption of innocence.
The Committee questioned the requirement on page 160, line 21, that the least restrictive condition be imposed. Committee members argued that using the least restrictive language changes the focus from whether bail is excessive to whether the condition is the least restrictive.
Committee members questioned the use of the word excessive on line 53. The word should be "any" to avoid having to define what is excessive.
Committee members questioned why the conditions need to be expressly stated in the rule when they are already being imposed on practice. Other Committee members said that a county judge has no basis for imposing conditions upon release to protect the safety of others and the community.
Committee members argued that specifying conditions will limit the creativity of judges. Other members noted that
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the list is not exclusive because lines 72 through 77 allow a judge to impose any other conditions deemed reasonably necessary.
Committee members suggested that the only solution is preventative detention. If conditions are imposed and the person still harms someone, the public reaction will be against the judiciary for not holding the person in jail.
Committee members disagreed as to why an exception may have been created for capital offenses in North Dakota's constitution. Some Committee members thought the exception for capital offenses was to protect the community. Other Committee members thought the exception for capital offenses was to assure the appearance of the accused, because the accused would have nothing to lose by attempting to flee.
Committee members argued that having language in the statute authorizing conditions to assure the safety of others would be a sham. Imposing conditions upon release does not reasonably assure the safety of any other person and the community. The only reason for including the language would be as a public relations ploy at the expense of the accused's presumption of innocence.
Committee members suggested the safety others is only one factor to consider. In some cases, the defendant will also need to be protected from himself or others if released.
Some Committee members were not concerned about the imposition of conditions. Their concern was directed towards the language pertaining to the safety of any other person in the community. Committee members questioned how the determination of dangerousness will be made. Preventative detention under the Federal statute has procedural protections. With no procedural protections, unattainable bail will be imposed because of racial prejudice and social status that will unlawfully result in detention of the accused.
The Committee questioned the language on lines 93 through 99. Staff explained that the first sentence may be the only alternative that is constitutional. The first sentence is contained in 18 U.S.C. § 3142 and Rule 46.1, Wyo.R.Civ.P. Under Aime v. Commonwealth, 611 N.E.2d 204 (Mass. 1993), this language is arguably required. Otherwise, without due process procedural protections, the rule will be authorizing preventative detention by authorizing the safety of others to be protected by setting unattainable bail.
If the second alternative starting on line 95 is used, the court could impose a reasonable condition that results in pretrial detention of a person. Such a condition may be unconstitutional without the procedural protections provided in 18 U.S.C. § 3142 for preventative detention.
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The third alternative states the standard for determining whether bail is excessive under the Eighth Amendment. Under this standard, bail can be set at an amount that results in detention of the person if the amount of bail is not more than reasonably required to assure the appearance of the accused. But under the Aime decision, bail cannot be set in an unattainable amount because the court would be circumventing the required due process procedural protections for preventative detention.
Committee members argued that prohibiting a magistrate from imposing a financial condition that results in the pretrial detention of a person will be unworkable. All a person would have to do is claim that they have no money and the magistrate would be forced to release them.
Committee members questioned when bail started to mean something more than assuring the presence of the defendant. Staff explained that in U.S. v. Salerno, 107 S.Ct. 295 (1987), the Supreme Court held that both assuring the appearance of the accused and assuring the safety of the community are compelling interests that may be achieved by denying bail.
If the sentence is not included in the rule, the rule will be authorizing a judge to set bail in an amount that will result in detention in order to assure the safety of the community. Committee members pointed out that lines 109 through 114 provide that if a person is detained for 48 hours because of inability to pay the conditions need to be reviewed. Federal courts have interpreted similar language as meaning that the magistrate has to give a written opinion as to why bond is not being lowered and the person is being detained.
Committee members argued that the rule should be left alone. Judges consider the safety of others now. Amending the statute will tie the hands of judges. Other Committee members argued that if judges are considering the safety of others when setting the amount of bail they are not following their oath of office.
Under Eighth Amendment analysis, bail may be set in an unattainable amount, if that amount is necessary to assure the appearance of the accused. If bail is set in an unattainable amount, preventative detention is being imposed and due process procedural protections are required.
Mr. McLean MOVED to adopt the proposal as set forth on pages 160 through 165 of the agenda material with the changes following: On line 21 eliminate the phrase "the least restrictive;" substitute the word "any," for "excessive" on line 53; and eliminate lines 93 through 99. Professor Kraft seconded.
Committee members questioned how many of the conditions actually protect the public. Some Committee members suggested
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making the safety of any other person or the community one of the factors to consider in determining whether the person will appear, instead of making it the standard for imposing conditions. Other Committee members questioned how the safety of any other person or the community relates to assuring the presence of the accused.
Committee members argued that if the proposed amendment is adopted the prosecution will argue that the person is dangerous to the community and that high bail should be set to detain the person.
The motion failed by a vote of 6 to 7.
RULE 10, N.D.R.App.P. - THE RECORD ON APPEAL (HANDOUT PREPARED BY JUDGE LECLERC)
Judge Leclerc handed out a proposal to amend Rule 10. The proposal provides that the order for transcript must be filed with the clerk of the trial court rather than on the reporter. The proposal also changes the phrase "court reporter" to "person preparing the transcript." The proposal would allow the person preparing the transcript to certify the accuracy of the transcript; rather than having the reporter certify the accuracy of the transcript. If a proceeding is tape recorded there would not be a court reporter.
Judge Leclerc questioned the necessity of having a court reporter certify a transcript that is prepared from a tape. The person preparing the transcript could make the certification. Other Committee members questioned whether there is a need to certify that the recording equipment accurately recorded the proceeding. Judge Leclerc explained that an alarm will sound if the equipment is not recording properly. Judge Leclerc further explained that the five-track tapes used in the trial court are reliable. Tapes have proven to be more accurate than court reporters.
Judge Leclerc suggested that reporters would not have to type the transcript. The job description for Secretary II's would be changed, so that they could prepare the transcript from the tape. The issue was deferred to the next meeting when more people would be present to discuss the concerns. The Committee no longer had a quorum present.
RULE 3, N.D.R.Civ.P. - COMMENCEMENT OF ACTION (PAGES 335-336 OF THE AGENDA MATERIAL)
The Committee discussed the letter from Judge Medd recommending that civil actions be commenced by filing the complaint with the court, rather than by service of summons. Judges want more control over pending cases. Committee members
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noted that the proposed change to Rule 45 requires an action to be filed before subpoenas may be issued. Committee members suggested that plaintiffs' attorneys like to extract a settlement with the threat of bad publicity, and that defendants' attorneys do not want immediate publicity. Other Committee members suggested that opposing attorneys will need to talk settlement before commencement of the lawsuit. The Committee will address this issue at the next meeting when there is a quorum.
RULE 3.2, N.D.R.O.C., AND MOTION PRACTICE (PAGES 169 THROUGH 183 OF THE AGENDA MATERIAL)
Staff explained that the time between the date a motion is served and the date a motion may be heard still needs to be addressed. Currently, nothing prevents the movant from filing a motion at such a late date that the responding party does not get the time contemplated by the rules for preparation of the responding party's brief. Staff suggested that the maximum amount of time needed between the date a motion is served and the date a motion may be heard could be shortened by requiring the moving party to serve and file a brief and supporting papers with the motion. By requiring the movant to file a brief with the motion eight days could be eliminated; that is, five days for preparation of the brief and three days for an intermediate Saturday, Sunday and legal holiday.
Staff suggested amending Rule 6(d) on page 181 to require a motion to be served 14 days before the motion may be heard. Rule 6(d) and Rule 3.2 would then be consistent. Fourteen days would cover almost all cases because in most cases all the time contingencies are not a factor. Also, in most cases, motions may not be heard sooner than 14 days anyway due to court congestion. In any event, Rule 6(d) provides that the court may fix a different time for hearing the motion.
Requiring the motion to be served 14 days before the motion may be heard would allow the responding party 10 days for preparation of the responding party's brief, 3 days for service by mail and 1 day for filing the responsive party's brief 24 hours before the hearing.
The Committee considered the proposal on pages 178 through 180 to break Rule 3.2 into categories dependent upon whether the motion is based on an issue of law or an issue of fact. Committee members commented that if an evidentiary hearing is granted as a matter of right, there would be numerous mini-trials. Currently, a judge has discretion whether to grant an evidentiary hearing. Concern was expressed about all the new issues that would be created by making special provisions for evidentiary hearings. New issues would include the following: (1) When the request for an evidentiary hearing must be made; (2) whether the court should be required to grant an evidentiary
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hearing; (3) whether both parties can request an evidentiary hearing; and (4) the time within which the evidentiary hearing must be held. Committee members also expressed concern about disputes as to whether a motion is based on questions of law or fact.
Committee members questioned whether the phrase "supporting papers" in Rule 3.2 includes affidavits. Other rules of procedure such as Rule 6(d) use the word "affidavit" instead of the phrase "supporting papers." Committee members noted that Rule 56 uses the phrase "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits." Committee members questioned whether the language in Rule 3.2 should be more exact rather than using the generic term "supporting papers."
Some Committee members argued that briefs should not be required, because allowing time for preparation of briefs delays when the motion may be heard. Committee members commented that when an interim order is issued, the party responding only has five days to serve and file a motion after service of the interim order. The moving party will have difficulty filing all the supporting papers at the time the motion is filed. Other Committee members added that this Committee has already added five extra days for responding to an interim order. Committee members commented that motions for protective orders may also need to be heard immediately.
Justice Levine suggested that the Committee hold off on making exceptions for family law matters. The State Bar Association of North Dakota Family Court Ad Hoc Committee is proposing changes to the present family law system. The Rules should not be amended to accommodate family law until the Committee knows what is being proposed.
CONTINUING LEGAL EDUCATION CREDITS FOR ATTENDANCE AT JTPC MEETINGS
Committee members questioned whether any progress has been made towards the attainment of continuing legal education credits for attendance at Committee meetings. It was noted that Justice Sand had made numerous attempts to get continuing legal education credits for Joint Procedure Committee work, but had been unsuccessful. Committee members commented that service on the Committee is a privilege that does not need payment. Concern was also expressed that lots of committees do work and it would be difficult to determine which ones should receive credits and which committees should not receive credits.
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The meeting adjourned at approximately 12:00 noon.
Gerhard Raedeke
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