Joint Procedure Committee Meeting

Scheduled on Thursday, November 29, 1984 @ 9:00 AM

MINUTES OF MEETING

Joint Procedure Committee

November 29-30, 1984

CALL TO ORDER

The meeting was called to order at 9:00 a.m., November 29, 1984 by Justice Paul M. Sand, Chairman.

ATTENDANCE

Present:

Hon. Wallace D. Berning
Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. Frank J. Kosanda
Hon. Lawrence A. Leclerc
Hon. William S. Murray
Hon. Kirk Smith
Mr. Leonard A. Bucklin
Mr. James L. Lamb
Ms. Beryl J. Levine
Mr. David L. Peterson
Mr. Ray Rund

Absent:

Mr. Robert C. Heinley
Hon. James H. O'Keefe
Mr. Ward M. Kirby
Professor Larry Kraft
Mr. LeRoy A. Loder
Mr. Herbert L. Meschke
Mr. Dean Winkjer

APPROVAL OF MINUTES

Judge Leclerc MOVED that the minutes of the October 18-19, 1984 meeting be approved as submitted. Judge Murray seconded the motion. Motion CARRIED.

CONTEMPT

Judge Burdick MOVED to defer discussion of the subject of contempt to a future meeting. Judge Smith seconded the motion. Motion CARRIED.

NDCC § 28-27-04 / NDRAppP 4

Judge Burdick MOVED that the Joint Procedure Committee recommend that the Supreme Court offer a proposed amendment to NDCC § 28-27-04 to provide for a sixty-day time for appeal. Mr. Rund seconded the motion. Motion CARRIED.

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RULE 27, NDRAppP

Mr. Bucklin MOVED to add a subsection (e) to NDRAppP 27 reading as follows:

(e) Motion to Dismiss Based on Ground Appeal Not Authorized by Law. The filing of a motion to dismiss which is based on the ground that the appeal is not authorized by law tolls the time for filing briefs on the merits. If the motion is denied, the running of the time for filing briefs on the merits resumes upon service of the notice of entry of the order.

Judge Kosanda seconded the motion. Motion CARRIED

MOTIONS

(a) Content of Motions; Response; Reply. Unless another form is elsewhere prescribed by these rules, an application for an order or other relief must be made by filing a motion for the order or relief with proof of service on all other parties. The motion must:

1. contain or be accompanied by any matter required by a specific provision of these rules governing that motion,

2. state with particularity the grounds on which it is based, and

3. set forth the order or relief sought.

If a motion is supported by briefs, affidavits, or other papers, they must be served and filed with the motion. Any party may file a response in opposition to a motion other than one for a procedural order (see subdivision (b)) within 10 days after service of the motion, but motions authorized by Rules 8, 9, and 41 may be acted upon after reasonable notice. The court may shorten or extend the time for responding to any motion.

(b) Determination of Motions for Procedural Orders. Notwithstanding the provisions of subdivision (a), motions for procedural orders, including any motion under Rule 26(b), may be acted upon at any time, without awaiting a response thereto. Any party adversely affected by action on the motion may request reconsideration, vacation, or modification of the action.

(c) Power of a Single Justice to Entertain Motions. In addition to the authority expressly conferred by these rules or by law, a single justice of the supreme court may entertain and may grant or deny any request for relief which may properly be sought by motion under these rules, except that a single justice may not dismiss or otherwise determine an

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appeal or other proceeding, and except that the court may provide by order or rule that any motion or class of motions must be acted upon by the court. The action of a single justice may be reviewed by the court.

(d) Number of Copies. Seven copies of all papers relating to motions must be filed with the original, but the court may require that additional copies be furnished.

BENCH WARRANTS

Judge Glaser MOVED that the staff prepare a proposal for a procedural rule covering the subject of bench warrants. Judge Burdick seconded the motion. Motion CARRIED.

RULE 4, NDRCivP

Judge Smith MOVED to amend NDRCivP 4(c)(2) and (e)(2) as follows:

Line 20: strike "district" and "in the county";

Line 74: strike "district"

Line 75: strike "in the county";

and to adopt the rule as amended. Judge Burdick seconded the motion. Motion CARRIED.

(1) summons-Contents. The summons must specify the venue of the court in which the action is brought, contain the title of the action specifying the names of the parties, and be directed to the defendant. It must state the time within which these rules require the defendant to appear and defend, and must notify him that in case of his failure to do so, judgment by default will be rendered against him for the relief demanded in the complaint. It shall be dated and subscribed by the plaintiff or his attorney, who shall add to his signature his post office address. (See Rule 4(e)(8) for additional information required when action involves real estate and service is by publication.)

(2) Summons Served With or Without Complaint. A copy of the complaint need not be served with the summons in which case the summons must state that the complaint is or will be

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filed with the clerk of the court in which the action is commenced, and if the defendant within 20 days after service of the summons causes notice of appearance to be given and in person or by an attorney demands in writing a copy of the complaint, specifying a place within the state where it may be served, a copy thereof within 20 days thereafter must be served accordingly. If, in that case, the complaint is not filed with the clerk within 20 days after service of the summons, the action is deemed discontinued.

. . . . . .

(e) Service by Publication.

(1) When Service by Publication Permitted. A defendant, whether known or unknown, who has not been served personally under the foregoing subdivisions of this rule may be served by publication in the manner hereinafter provided in one or more of the following situations only if:

(A) The claim for relief is based upon one or more grounds for the exercise of personal jurisdiction under paragraph (2) of subdivision (b) of this rule;

(B) The subject of the action is real or personal property in this state and the defendant has or claims a lien thereon or other interest therein, whether vested or contingent, or the relief demanded against him consists wholly or partly in excluding him from such lien or interest or in defining, regulating, or limiting such lien or interest, or the action otherwise affects the title to the property;

(C) The action is to foreclose a mortgage, cancel a contract for sale, or to enforce a lien upon or a security interest in real or personal property in this state;

(D) The plaintiff has acquired a lien upon property or credits of the defendant within this state by attachment, garnishment, or other judicial processes and the property or credit is the subject matter of the litigation or the underlying claim for relief relates to the property or credits;

(E) The action is for divorce, separation from bed and board, or annulment of a marriage of a resident of this state or to determine custody of an individual subject to the court's jurisdiction; or

(F) The action is to award, partition, condemn, or escheat real or personal property in this state.

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(2) Filing of Complaint and Affidavit for Service by Publication. Before service of the summons by publication is authorized in any case, there must be filed with the clerk of the court in which the action is commenced a complaint setting forth a claim in favor of the plaintiff and against the defendant based on one or more of the situations specified in paragraph (a) of this subdivision and an affidavit executed by the plaintiff or his attorney stating, as may be applicable, one or more of the following:

(A) That personal service of the summons cannot be made upon the defendant in this state to the best knowledge, information, and belief of the affiant, in which case the affidavit must be accompanied by the return of the sheriff of the county in which the action is brought stating that after diligent inquiry for the purpose of serving the summons he is unable to make personal service thereof upon the defendant in this state;

(B) That the defendant is a domestic corporation which has forfeited its charter or right to do business in this state or has failed to file its annual report as required by law;

(C) That the defendant is a domestic or foreign corporation and has no officer, director, superintendent, managing agent, business agent, or other agent authorized by appointment or by law upon whom service of process can be made in its behalf in this state; or

(D) That all persons having or claiming an estate or interest in, or lien or encumbrance upon, the real property described in the complaint, whether as heirs, devisees, legatees, or personal representative of a deceased person, or under any other title or interest, and not in possession, nor appearing of record in the office of the register of deeds, the clerk of the district court, or the county auditor of the county in which the real property is situated, to have such claim, title or interest therein, are proceeded against as unknown persons defendant pursuant to Chapter 32-17 or 32-19 of the North Dakota Century Code, and stating facts necessary to satisfy the requirement of those chapters.

RULE 611, NDREv

Judge Burdick MOVED that we consider the next item of business on the agenda. Mr. Lamb seconded the motion. Motion CARRIED.

RULE 10, NDRAppP

Judge Burdick MOVED to amend NDRAppP 10(e) as follows:

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Line 10, et seq.: strike "The transcript may be prepared by any competent typist, but the transcript must be examined and certified by the reporter who took the transcription."; and insert the following language:

"The accuracy of the transcript must be certified by the reporter or operator who took the shorthand notes or operated the electronic recording, as the case may be. If the reporter or operator is not available or was not present during the proceeding, the judge shall certify the accuracy of the transcript."

Mr. Rund seconded the motion. Motion CARRIED.

Judge Kosanda, Mr. Lamb and Ms. Levine voted no.

(e) Form of Transcript. Each transcript must conform to the requirements of Rule 32, but carbon copies are permitted. In addition, the lines must be numbered on the left margin, and each page must contain not more than 28 nor fewer than 25 lines, with a margin on the left of not less than 1 ½ inches. Each transcript must have a complete index stating therein where may be found the exhibits, accurately described, the examination of each of the witnesses, and the orders and proceedings of any trial court. The accuracy of the transcript must be certified by the reporter or operator who took the shorthand notes or operated the electronic recording, as the case may be. If the reporter or operator is not available or was not present during the proceeding, the judge shall certify the accuracy of the transcript.

RULE 30, NDRCrimP - Explanatory Note

Mr. Lamb MOVED to amend the explanatory note to NDRCrimP 30 by striking the following:

"as amended effective August 1, 1971 except for subdivision (d). Subdivision (d) was added to give optional effect of this Rule to county justice and municipal courts presided over by persons learned in the law. This subdivision excludes the operation of this Rule as to other justice and municipal courts."

Judge Burdick seconded the motion. Motion CARRIED.

This rule is identical to Rule 51, NDRCivP.

RULE 41, NDRAPPP - Explanatory Note

Mr. Lamb MOVED to amend the explanatory note to NDRAppP 41 as follows:

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Add the following language: "Subdivision (c) was effective _____________,

and is derived from Rule 18 of the Eighth Circuit Rules of Appellate Procedure.

Mr. Rund seconded the motion. Motion CARRIED.

This rule is derived from Rule 41, FRAppP. A motion for a stay pending appeal or petition to the United States Supreme Court for a writ of certiorari should be made pursuant to Rule 27.

Because the United States Supreme Court presently does not notify the state appellate courts when an appeal is taken or a petition for writ of certiorari is received, the party obtaining the stay must file a copy of the notice of appeal or the petition for writ of certiorari with the North Dakota Supreme Court in order to continue the stay until the case is disposed of by the United States Supreme Court.

Subdivision (c) was adopted effective ___________________ and is derived from Rule 18 of the Eighth Circuit Rules of Appellate Procedure.

RULE 15, NDRCivP - Explanatory Note

Judge Kosanda MOVED to amend the explanatory note to NDRCivP 15 as follows:

Lines 1 through 8 to read:

Rule 15 is identical to FRCivP 15 except for style changes and appropriate references to the Attorney General of North Dakota and the State of North Dakota in subdivision (c).

Subdivision (a) was amended effective ______________________, by adding the phrase "pleading is one to which no responsive pleading is permitted and the" to conform to the federal rule.

Lines 9 and 10: delete;

Lines 11-14 to read: Subdivisions (c) and (d) were amended in 1971 to conform to amendments in the federal rule in 1963 and 1966.

Line 13: delete "revised to make it clear" and insert "amended to clarify";

Line 17: delete "state more clearly" and insert "clarify."

Mr. Rund seconded the motion. Motion CARRIED.

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Rule 15 is identical to FRCivP 15 except for style changes and appropriate references to the Attorney General of North Dakota and the State of North Dakota in subdivision (c).

subdivision (a) was amended effective __________________________, by adding the phrase "pleading is one to which no responsive pleading is permitted and the" to conform to the federal rule.

Subdivisions (c) and (d) were amended in 1971 to conform to amendments to the federal rule in 1963 and 1966. Subdivision (d) was amended to clarify that a supplemental pleading could be allowed even though the original pleading was defective in its statement of a claim or defense. Subdivision (c) was amended to clarify that an amendment changing the party against whom a claim is asserted relates back to the date of the original pleading.

RULE 31, NDRCivP

Mr. Peterson MOVED to adopt the following amendments to NDRCivP 31:

Line 34: delete "shall" and insert "must"; delete "taking" and insert "noticing";

Line 38: delete comma and insert "and";

Line 39: after "certify" insert "the deposition";

Lines 39-41: delete "file or mail the deposition, attaching thereto the copy of the notice and the questions received by him." and insert "deliver it or send it by registered or certified mail to the party noticing the deposition."

Lines 43-45: delete.

Judge Burdick seconded the motion. Motion CARRIED.

DEPOSITIONS OF WITNESSES UPON WRITTEN QUESTIONS

(a) serving Questions - Notice. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 45. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating

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(1) the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs, and

(2) the name or descriptive title and address of the officer before whom the deposition is to be taken.

A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with the provisions of Rule 30(b)(6).

Within 30 days after the notice and written questions are served, a party may serve cross questions upon all other parties. Within 10 days after being served with cross questions, a party may serve redirect questions upon all other parties within 10 days after being served with redirect questions, a party may serve recross questions upon all other parties. The court may for cause shown enlarge or shorten the time.

(b) officer to Take Responses and Prepare Record. A copy of the notice and copies of all questions served must be delivered by the party noticing the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by Rule 30(c), (e), and (f), to take the testimony of the witness in response to the questions and to prepare and certify the deposition and deliver it or send it by registered or certified mail to the party noticing the deposition.

RULE 35.1, NDRAppP

Mr. Rund MOVED to adopt proposed Rule 35.1, NDRAppP. Judge Leclerc seconded the motion.

RECESS

The meeting recessed to 1:00 p.m., November 29, 1984.

CALL TO ORDER

The meeting was called to order at 1:00 p.m., November 29, 1984 by Justice Paul M. Sand, Chairman.

ATTENDANCE

The roll call remained the same, except that Mr. Bucklin was not present.

RULE 35.1, NDRAppP

Judge Burdick MOVED a substitute motion to amend the proposed NDRAppP 35.1 as follows:

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The title to read: "Summary Disposition";

Lines 1-16: strike;

Lines 17-20 to read: "(a) Affirmance by Summary opinion. In any case in which the court determines after argument, unless waived, that no reversible error of law appears and either";

Line 28: insert "or; 5. a previous controlling appellate decision is dispositive of the appeal,"

Line 37 to read: "be submitted for quarterly publication".

Judge Berning seconded the motion.

Mr. Lamb MOVED a substitute motion to adopt the proposed language in lines 1 through 10, and to adopt proposed subdivision (c). Motion LOST for lack of a second.

The question was on the substitute motion of Judge Burdick. Motion CARRIED.

SUMMARY DISPOSITION

(a) Affirmance by Summary Opinion. In any case in which the court determines after argument, unless waived, that no reversible error of law appears and either:

(1) the appeal is frivolous and completely without merit;

(2) the decision of the trial court is supported by substantial evidence;

(3) the verdict of the jury is supported by substantial evidence;

(4) the trial court did not abuse its discretion; or

(5) a previous controlling appellate decision is dispositive of the appeal, the court may affirm by an opinion citing this rule and indicating which one or more of the above criteria applies and citing any previous controlling appellate decision. The opinion may be in the following form: "Affirmed under NDRAppP 35.1(a), (1), (2), (3), (4), or (5)."

(b) Quarterly Publication. A list indicating the disposition of all decisions rendered by the supreme court under subdivision (a) must be submitted for quarterly publication in the North Western Reporter, except decisions the supreme court specially orders to be published in the regular manner. Decisions published quarterly may not be

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cited or relied upon as authority in any litigation in any court in North Dakota unless the decision establishes the law of the case, res judicata, or collateral estoppel, or in a criminal action or proceeding involving the same defendant, or a disciplinary action or proceeding involving the same respondent.

NEXT MEETING

The next meeting has been scheduled for January 24-25, 1985, to commence at 9:00 a.m. on the 24th.

RULE 35.1, NDRAppP --Explanatory Note

Mr. Peterson MOVED to adopt the proposed explanatory note to NDRAppP 35.1, lines 1 through 4. Judge Kosanda seconded the motion. Motion CARRIED.

Rule 35.1, NDRAppP, was adopted effective _______________________. The rule is intended to provide a mechanism for the supreme court to summarily affirm some appeals.

APPEALS FROM GOVERNMENTAL SUBDIVISIONS

Mr. Lamb MOVED to defer action on this matter so that Mr. Sagsveen can first go to the Legislature to see what relief he can get at that level, and if he still feels it should be done by rule he can contact us after the Legislature has adjourned. Judge Smith seconded the motion. Motion CARRIED.

RULE 46, NDRCrimP - Explanatory Note

Judge Leclerc MOVED to adopt the proposed amendments to the explanatory note to NDRCrimP 46.

Line 2: delete language following "1972.";

Lines 3 through 36: delete;

Lines 40 and 41 to read: "Subdivision (b) is adapted from the Bail Reform Act of 1966 (P.L. 89-465, 80 Stat. 215), 18 USC § 3147(a).";

Lines 42-44: delete;

Lines 45-48 to read: "Subdivision (c) follows subdivision (b) of the federal rule and provides for bail during trial. This provision continues North Dakota law (Section 29-08-08, NDCC.";

Lines 49-61: delete;

Lines 62-74 to read: "Subdivision (d) and NDRAppP 9(b) are identical and are derived from FRAppP 9(b). These subdivisions regulate the procedure for release of the defendant

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when the jurisdiction of the appellate court has attached by virtue of the filing of an appeal from a judgment of conviction. Both subdivision (d) and NDRAppP 9(b) were amended, effective _______________, to permit modification or revocation of the release of a defendant who was initially released pending appeal and to clarify that an application for release after a notice of appeal is filed must be made in the first instance in the trial court and thereafter in the supreme court."

Line 75 to read: "Subdivision (e) is similar to 18 USC § 3149.";

Lines 76-93: delete;

Line 94 to read: "Subdivision (f) follows subdivision (d) of the federal rule.";

Line 96 to read: "Subdivision (g)(1) follows subdivision (e)(1) of the federal rule and";

Line 109 to read: "Subdivision (g)(3) follows subdivision (e)(3) of the federal rule";

Line 118 to read: "Subdivision (g)(4) follows subdivision (e)(4) of the federal rule.";

Lines 119-121: delete;

Line 125 to read. "Subdivision (h) follows subdivision (e)(4) of the federal rule.";

Line 133: insert "and" after "NDCC)"; delete "This is done to";

Line 136 to read: "Subdivision (i) follows subdivision (g) of the federal rule."

Judge Kosanda seconded the motion. Motion CARRIED.

Rule 46 is an adaptation of Rule 46, FRCrimP, as amended in 1972.

Subdivision (a) is adapted from the language of the Bail Reform Act of 1966 (P.L. 89-465, 80 Stat. 214), 18 USC § 3146).

Subdivision (b) is adapted from the Bail Reform Act of 1966 (P.L. 89-465, 80 Stat. 215), 183 USC § 3147(a)).

Subdivision (c) follows subdivision (b) of the federal rule and provides for bail during trial. This provision continues North Dakota law (Section 29-08-08, NDCC).

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Subdivision (d) and NDRAppP 9(b) are identical and are derived from FRAppP 9(b). These subdivisions regulate the procedure for release of the defendant when the jurisdiction of the appellate court has attached by virtue of the filing of an appeal from a judgment of conviction. Both subdivision (d) and NDRAPPP 9(b) were amended, effective ________________,to permit modification or revocation of the release of a defendant who was initially released pending appeal and to clarify that an application for release after a notice of appeal is filed must be made in the first instance in the trial court and thereafter in the supreme court.

Subdivision (e) is similar to 18 USC § 3149.

Subdivision (f) follows subdivision (d) of the federal rule.

Subdivision (g)(1) follows subdivision (e)(1) of the federal rule and North Dakota law (section 29-08-21, NDCC) and requires that a forfeiture of the bond must be declared if there is a breach of conditions on the bond. Although this provision has been held to be mandatory, subdivision (g)(2) permits an excusal of the forfeiture if "justice does not require the enforcement of the forfeiture." "The forfeiture provision is designed to discourage violations of bail covenants and to deter defaults which create unnecessary delay and expense to the government [prosecution)." Smith v. United States, 357 F.2d 486, 490 (5th Cir. 1966).

Subdivision (g)(3) follows subdivision (e)(3) of the federal rule and establishes a single procedure, copied from Rule 65.1, FRCivP, through which the court on motion can enforce forfeited bail bonds. Subdivision (g)(3) was amended, effective _________________________, to delete "district" court and make clear that the obligors, by entering in a bond, subject themselves to jurisdiction of an appropriate court and appoint the clerk as their agent for service of any papers.

Subdivision (g)(4) follows subdivision (e)(4) of the federal rule. A determination for remission should be made only after judgment of default has been entered. [United States v. Miller, 323 F.2d 403 (6th Cir. 1963).]

Subdivision (h) follows subdivision (e)(4) of the federal rule. The provision that the surety may surrender the defendant into custody, whether or not the case has been disposed of, is consistent with existing North Dakota law (Section 29-08-20, NDCC) and avoids a breach and forfeiture when the surety has reason to anticipate that defendant will not appear.

Subdivision (i) follows subdivision (g) of the federal rule.

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RULE 9, NDRAppP - Explanatory Note

Judge Leclerc MOVED to adopt the proposed amendments to the explanatory note to NDRAppP 9.

Line 1: delete "Taken from Rule 9, FRAppP, this" and insert "This";

Line 2: After "for" insert "release pending appeal"; delete "post conviction relief";

Line 3: after "in" insert "a"; after "criminal" insert "case"; delete "proceedings";

Line 4: after "procedure" insert "in subdivision (a)";

Line 7: delete "It is identical to Rule 46(d), NDRCrimP."

Line 9 insert "Subdivision (b) and NDRCrimP 46(d) are identical and are derived from FRAppP 9(b). These subdivisions regulate the procedure for release of the defendant when the jurisdiction of the appellate court has attached by virtue of the filing of an appeal from a judgment of conviction. Both subdivision (b) and NDRCrimP 46(d) were amended, effective __________________, to permit modification or revocation of the release of a defendant who was initially released pending appeal and to clarify that an application for release after a notice of appeal is filed must be made in the first instance in the trial court and thereafter in the supreme court."

Mr. Lamb seconded the motion. Motion CARRIED.

This rule incorporates a procedure for release pending appeal in a criminal case but omits the federal procedure in subdivision (a) for appeal of an order refusing pre-conviction release, because there is no authority or precedent for these appeals under North Dakota practice.

Subdivision (b) and NDRCrimP 46(d) are identical and are derived from FRAppP 9(b). These subdivisions regulate the procedure for release of the defendant when the jurisdiction of the appellate court has attached by virtue of the filing of an appeal from a judgment of conviction. Both subdivision (b) and NDRCrimP 46(d) were amended, effective ____________________ to permit modification or revocation of the release of a defendant who was initially released pending appeal and to clarify that an application for release after a notice of appeal is filed must be made in the first instance in the trial court and thereafter in the supreme court.

The North Dakota Supreme Court has stated that on a motion for release pending appeal under this rule, the defendant is entitled to release only if it appears:

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"(1) that the appeal is not frivolous, (2) that the appeal is not taken for the purpose of delay, (3) that there is sufficient reason to believe that the conditions of release will reasonably assure that the defendant will not flee, and (4) there is sufficient reason to believe that the defendant does not pose a danger to any other person or to the community." State v. Azure, 241 N.W.2d 699, 700 (N.D. 1976).

RULE 32, NDRCrimP - Explanatory Note

Judge Kosanda MOVED to adopt alternative 2 of the proposed amendments to the explanatory note to NDRCrimP 32.

Line 2: insert "Subdivision (a) deals with sentencing and follows the federal rule with the addition of a provision for bail pending disposition of sentence, and the deletion of a provision requiring the clerk of court, if requested by the defendant, to file a notice of appeal on behalf of the defendant."

Lines 8-33: delete;

Line 38: delete "in this respect";

Lines 39-62: delete;

Line 64: delete "except that" and insert ", but";

Line 68: insert "Subdivision (b) of the federal rule includes a provision for a judgment of criminal forfeiture which authorizes the Attorney General to seize the property subject to forfeiture.";

Lines 72-88: delete;

Line 89: delete "differs from its federal counterpart in that it leaves to the court's discretion whether or not";

Line 91: insert "makes";

Line 92: insert "discretionary with the court and differs from its federal counterpart which makes a presentence report mandatory subject to waiver by the defendant or a specific finding by the court that the record includes sufficient information for the court to exercise sentencing discretion.";

Lines 97-106: delete;

Line 107: delete "(2) follows FRCrim 32(c)(2) and";

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Line 108: insert "is similar to its federal counterpart. Although this subdivision does not contain explicit language dealing with information concerning victims of the offense, as the federal rule does, the language is intended to be broad enough to include that information.";

Lines 113-118: delete;

Line 119: delete "FRCrimP 32(c)(3)";

Line 120: insert "its federal counterpart";

Line 123: delete "is included to"; insert "permits";

Lines 129-142: delete;

Line 144: delete "The amended rule" and insert ", and";

Line 159: after "provides" insert "that the court may place the defendant on";

Line 163: insert after "Subdivision (f)", "has no counterpart in FRCrimP 32; however, FRCrimP 32.1 deals with the same subject in a different way. Subdivision (f) is not intended to include those situations in which the court no longer has jurisdiction over the individual."

Lines 168-191: delete, and insert "Subdivision (f)(1) is adapted from and supersedes NDCC § 12-53-15. The subdivision, as amended effective January 1, 1980 clarifies";

Line 196: delete "1" and insert "2";

Lines 198-214: delete;

Lines 218-230: delete.

Mr. Peterson seconded the motion. Motion CARRIED.

Rule 32 is similar to FRCrimP 32.

Subdivision (a) deals with sentencing and follows the federal rule with the addition of a provision for bail pending disposition of sentence, and the deletion of a provision requiring the clerk of court, if requested by the defendant, to file a notice of appeal on behalf of the defendant.

Subdivision (a)(1), as amended effective ________________________ requires the court to determine that the defendant and his counsel have had an opportunity to read and discuss the presentence report or summary and follows the federal rule as amended in 1983.

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Subdivision (b) provides for judgment, and follows the language of the federal rule, but the words "or findings" are omitted from the first sentence as unnecessary. Section 1-01-41, NDCC, includes in the definition of "verdict," findings of fact by the judge. Subdivision (b) of the federal rule includes a provision for a judgment of criminal forfeiture which authorizes the Attorney General to seize the property subject to forfeiture.

Subdivision (c)(1) makes a presentence investigation and report discretionary with the court and differs from its federal counterpart which makes a presentence report mandatory subject to waiver by the defendant or a specific finding by the court that the record includes sufficient information for the court to exercise sentencing discretion.

Subdivision (c)(2) is similar to its federal counterpart. Although this subdivision does not contain explicit language dealing with information concerning victims of the offense, as the federal rule does, the language is intended to be broad enough to include that information.

Subdivision (c)(3) follows its federal counterpart as amended in 1983 and provides for the disclosure of the presentence report to the defendant and his counsel a reasonable time before sentencing. This provision permits the defendant and his counsel to have an opportunity to review the report for any inaccurate, incomplete or misleading information and to point it out to the court and, effective January 1, 1980, at the discretion of the court, introduce testimony or other information.

Subdivision (c)(3)(iv), amended effective ______________________, follows the 1983 amendment to the federal rule, and requires the sentencing court to make a finding as to any alleged factual inaccuracies in the presentence report or to determine that no finding is necessary because the issue controverted will not be taken into account in sentencing. The rule is intended to insure an accurate presentence report for sentencing purposes and for later custody or parole determinations.

Subdivision (d) is adapted from A.B.A. Standards relating to Pleas of Guilty, §§ 2.1(a), 2.1(a)(i) and 2.1(b).

Subdivision (e) deals with probation. Whenever a sentence for a felony is suspended (Section 12-53-06, NDCC) or is deferred (Section 12-53-13, NDCC) the court shall place the defendant on probation. Section 12-53-04 provides that the court may place the defendant on probation or parole as part of an order suspending a sentence to imprisonment in a county jail upon a conviction for a misdemeanor.

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Subdivision (f) has no counterpart in FRCrimP 32; however, FRCrimP 32.1 deals with the same subject in a different way. Subdivision (f) is not intended to include those situations in which the court no longer has jurisdiction over the individual.

Subdivision (f)(1) is adapted from and supersedes NDCC § 12-53-15. The subdivision, as amended effective January 1, 1980, clarifies that a probationer may be admitted to bail pending the hearing.

Subdivision (f)(2) is adapted in part from the A.B.A. Standards, Standards Relating to Probation, § 5.4 at 65 (Approved Draft, 1970).

An appeal from revocation of probation is not precluded under Section 12-53-20, NDCC. See State v. Lesmeister, 288 N.W.2d 57 (N.D. 1980); NDCC § 29-28-07(5).

RULE 52, NDRCivP - Effect on other court Rules.

The Committee instructed staff counsel to conform the other rules of procedure to its action on NDRCivP 52.

RULE 54, NDRCivP - Explanatory Note

Mr. Peterson MOVED to adopt the following amendments to the explanatory note to NDRCivP 54:

Line 6: insert "Subdivision (b) requires the trial court to exercise its discretion in directing the entry of final judgment as to one or more but fewer than all of the claims or parties. The party requesting certification carries the burden of establishing that prejudice or hardship will result if certification is denied, and the trial court, in exercising its discretion, must weigh 'the overall policy prohibiting piecemeal appeals against the exigencies of the case.

Mr. Lamb seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt this further amendment to the explanatory note:

Insert the following sentence at the end of the above amendment: "See criteria in Union State Bank v. Woell, ___ N.W.2d ___ (N.D. 1984)."

Ms. Levine seconded the motion. Motion CARRIED.

Rule 54 is derived from Rule 54, FRCivP, with more detailed provisions concerning the allowance of costs [subdivision (e)], and for death of a party after verdict, but before judgment [subdivision (d)], taken from Section 28-2005, NDRC 1943.

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Subdivision (b) requires the trial court to exercise its discretion in directing the entry of final judgment as to one or more but fewer than all of the claims or parties. The party requesting certification carries the burden of establishing that prejudice or hardship will result if certification is denied, and the trial court, in exercising its discretion, must weigh the overall policy prohibiting piecemeal appeals against the exigencies of the case. See criteria in Union State Bank v. Woell, ___ N.W.2d ___ (N.D.1984).

Subdivision (e) was amended in 1983, effective September 1, 1983, by deleting all of the former subdivision (e) after the first sentence and deleting all of former subdivision (f), and inserting the present provisions of subdivision (e). The change was made to eliminate the cumbersome procedure of taxation and retaxation of costs and disbursements, and to provide that a copy of the statement of costs and disbursements must accompany the notice of entry of judgment.

RULE 56, NDRCivP - Explanatory Note

Judge Burdick MOVED to adopt the proposed amendment to the explanatory note to NDRCivP 56.

Insert the following paragraph: "Under subdivision (e) a party resisting a motion for summary judgment has the responsibility to draw the court's attention to the page and line of a deposition or other document containing the competent admissible evidence raising a material factual issue, or from which the trier of fact may draw an inference creating a material factual issue. First National Bank of Hettinger v. Clark, 332 N.W.2d 264 (N.D. 1983)."

Mr. Rund seconded the motion. Motion CARRIED.

Rule 56 is identical to Rule 56, FRCivP, with the clarifying addition in the last sentence of subdivision (c), that summary judgment, if appropriate, may be rendered against the moving party.

Under subdivision (e) a party resisting a motion for summary judgment has the responsibility to draw the court's attention to the page and line of a deposition or other document containing the competent admissible evidence raising a material factual issue, or from which the trier of fact may draw an inference creating a material factual issue. First National Bank of Hettinger v. Clark, 332 N.W.2d 264 (N.D. 1983).

RULE 4, NDRAppP / RULE 37(b), NDRCrimP

Judge Burdick MOVED to adopt alternative 2 of the proposed amendments to NDRAppP 4(b).

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Lines 5-9: delete "A notice of appeal filed after the announcement of the decision, sentence, or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day thereof."

Line 26: insert "A notice of appeal filed after the announcement of a decision, sentence, or order but before entry of the judgment or order must be treated as filed after the entry and on that day."

Judge Glaser seconded the motion. Motion CARRIED.

(b) Appeals in Criminal Cases.

(1) In a criminal case the notice of appeal by a defendant must be filed with the clerk of the trial court within 10 days after the entry of the judgment or order appealed from. If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of an order denying the motion. A motion for a new trial based on the ground of newly discovered evidence will similarly extend the time for appeal from a judgment of conviction if the motion is made before or within 10 days after entry of the judgment.

(2) If an appeal by the state is authorized by statute, the notice of appeal must be filed with the clerk of the trial court within 30 days after the entry of the judgment or order appealed from.

(3) A judgment or order is entered within the meaning of this subdivision when it is entered in the criminal docket. A notice of appeal filed after the announcement of a decision, sentence, or order but before entry of the judgment or order must be treated as filed after the entry and on the day thereof. Upon a showing of excusable neglect the trial court may before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.

Judge Burdick MOVED to adopt alternative 2 of the proposed amendments to NDRCrimP 37(b).

Line 26: after the word "docket" insert: "A notice of appeal filed after the announcement of the verdict, decision, sentence, or order but before entry of the judgment or order must be treated as filed after the entry and on that day."

Judge Glaser seconded the motion. Motion CARRIED.

(b) Time for Appeal; When Taken.

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(1) The notice of appeal by a defendant must be filed with the clerk of the trial court within 10 days after the entry of the judgment or order appealed from. If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of an order denying the motion. A motion for a new trial based on the ground of newly discovered evidence will similarly extend the time for appeal from a judgment of conviction if the motion is made before or within 10 days after entry of the judgment.

(2) If an appeal by the prosecution is authorized by statute, the notice of appeal must be filed with the clerk of the trial court within 30 days after the entry of the judgment or order appealed from.

(3) A judgment or order is entered within the meaning of this subdivision when it is entered in the criminal docket. A notice of appeal filed after the announcement of the verdict, decision, sentence, or order but before entry of the judgment or order must be treated as filed after the entry and on that day. Upon a showing of excusable neglect the trial court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.

RECESS

The meeting was recessed to 9:00 a.m., November 30, 1984.

CALL TO ORDER

The meeting was called to order at 9:00 a.m., November 30, 1984 by Justice Paul M. Sand, Chairman.

ATTENDANCE

Present:

Hon. Wallace D. Berning

Hon. Eugene A. Burdick

Hon. Gerald G. Glaser

Hon. Frank J. Kosanda

Hon. Lawrence A. Leclerc

Hon. William S. Murray

Hon. Kirk Smith

Mr. James L. Lamb

Ms. Beryl J. Levine

Mr. David L. Peterson

Mr. Ray Rund

Absent:

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Mr. Robert C. Heinley

Hon. James H. O'Keefe

Mr. Leonard A. Bucklin

Mr. Ward M. Kirby

Professor Larry Kraft

Mr. LeRoy A. Loder

Mr. Herbert L. Meschke

Mr. Dean Winkjer

NDRCivP 81 - Table A

Judge Burdick MOVED to adopt the proposed amendments to Table A. Judge Kosanda seconded the motion. Motion CARRIED.

TABLE A

SPECIAL STATUTORY PROCEDURE UNDER RULE 81

The following is a nonexclusive list of statutes pertaining to special procedures.

North Dakota Century Code

10-21 North Dakota Business Corporation Act -- Dissolution

14-01-12 to 14-07-14 Transfer of Property When Spouse Abandoned or Imprisoned

14-09-06 Habeas Corpus to Determine Custody of Minor

14-12.1 Revised Uniform Reciprocal Enforcement of Support Act

14-15 Revised Uniform Adoption Act

14-17 Uniform Parentage Act

16.1-01-08 Correcting Errors on Ballots

16.1-16 Contest of Elections

18-01-18 to 18-01-27 Proceedings to Abate Fire Hazards

27-20 Uniform Juvenile Court Act

Title 30.1 Uniform Probate Code

32-15 Eminent Domain

32-16 Action for Partition of Real Property

32-17 Actions to Quiet Title and Determine Claims to Real Estate

32-18 Cancellation of Land Contracts

32-19 Foreclosure of Real Estate Mortgage by Action

32-20 Foreclosure of Liens on Personal Property

32-22 Habeas Corpus

32-26 Administration of Assignment for Benefit of Creditors

32-27 Establishing Citizenship

32-28 Change of Names of Persons and Places

32-29 Arbitration

32-30 Proceedings Against Joint Debtors

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32-31 Foreclosure of Tax Liens

32-32 Special Proceedings, General Provisions

32-33 Writ of Certiorari

32-34 Writ of Mandamus

32-35 Writ of Prohibition

32-37 Establishing Date and Place of Birth

40-47-11 Determination of Board of Adjustment Reviewable by Certiorari

40-51.2-15 Review of Determination of Commission by Certiorari

44-01-10 Approval of Bond by Public Officer

49-11-12 Review of Commission's Disapproval of Plan for Railroad Crossing Without Stopping

57-30 Action by County to Quiet Title

59-04 Administration of Trusts

60-06 Public Warehouses on Railroad Right-of-Way

RULE 31, NDRCrimP

Judge Burdick MOVED to adopt the following amendments to NDRCrimP 31:

Line 1: delete "shall", insert "must";

Line 2: delete "shall", insert "must";

Line 16: delete "when", insert "Whenever";

Line 17: delete "shall", insert "must";

Line 24: delete "insanity", insert "lack of criminal responsibility by mental disease or defect at the time of the alleged crime";

Line 28: delete "their", insert "its";

Line 34: delete "their", insert "its";

Line 38: delete "must", insert "shall";

Line 43: delete "their", insert "its".

Judge Kosanda seconded the motion. Motion CARRIED.

VERDICT

(a) Return. The verdict must be unanimous. It must be returned by the jury to the judge in open court.

(b) Several Defendants. If there are two or more defendants, the jury at any time during its deliberations may return a verdict or verdicts with respect to a defendant or

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defendants as to whom it has agreed; if the jury cannot agree with respect to all, the defendant or defendants as to whom it does not agree may be tried again.

(c) Conviction of Lesser Offense. The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.

(d) Poll of Jury. Whenever a verdict is returned and before it is recorded the jury must be polled at the request of any party or upon the court's own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.

(e) Special Verdicts.

(1) Whenever the defendant interposes the defense of lack of criminal responsibility by mental disease or defect at the time of the alleged crime and evidence thereof is given at the trial, the jury, if it finds him not guilty on that ground, shall declare that fact in its verdict.

(2) Whenever the defendant interposes the defense that he has been formerly convicted or acquitted of the same offense or an offense necessarily included therein, or once in jeopardy, and evidence thereof is given at the trial, the jury, if it so finds, shall declare that fact in its verdict.

(3) Whenever the defendant is charged with treason or conspiracy to commit treason and more than one overt act is charged, the jury, before returning a verdict of guilty, shall return a special verdict with respect to each overt act charged.

(4) Whenever the defendant interposes any other defense which cannot be reflected in a general verdict, and evidence thereof is given at the trial, the jury, if it so finds, shall declare that fact in its verdict.

RULE 57, NDRCrimP

Judge Burdick MOVED to inform West Publishing Co. of the correct version of the Rule as adopted in 1981 so that appropriate change may be made in the rules manual. Judge Kosanda seconded the motion. Motion CARRIED.

In all cases not provided for by rule or statute, the court may regulate its practice in any proceeding properly before it in any manner not inconsistent with rules adopted by the supreme court or any applicable statute.

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RULE 52, NDRCivP - Explanatory Note

Mr. Peterson MOVED to delete the following language of the proposed amendment to the explanatory note to NDRCivP 52:

"The standard of review is that the supreme court shall affirm the judgment or order if it is in accordance with the law and there is substantial evidence to support the decision."

Line 22: change "must" to "should".

and to adopt the explanatory note as proposed. Judge Glaser seconded the motion. Motion CARRIED.

Ms. Levine voted no and explained: "Having been absent from the meeting in which the vote to change the rule was made it is my only mode of expressing my dissent."

Judge Burdick also voted no.

Rule 52 was amended, effective _______________, by deleting all of former subdivisions (a) and (b), which followed the federal rule, and by adopting the present language.

The rule, as amended, requires the trial court, in an action tried without a jury or with an advisory jury, to state its conclusions of law orally in open court or in an opinion or memorandum decision.

The rule, as amended, and NDRAppP 35, as amended in _______________, are intended to provide the same standard of review for actions tried without a jury or with an advisory jury and for actions tried with a jury.

The conclusions of law should be sufficient to apprise the appellate court of the principles of law the court applied in reaching its decision and are intended to be similar in scope to the jury instructions that would have been given if the action had been tried to a jury.

RULE 52, NDRCivP

Judge Burdick MOVED to reconsider the action on NDRCivP 52. Judge Smith seconded the motion.

Judge Glaser MOVED a substitute motion to table the discussion of NDRCivP 52 and put it on the agenda for the next meeting. Mr. Peterson seconded the motion. Motion CARRIED.

RULE 35, NDRAppP - Explanatory Note

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Judge Kosanda MOVED to adopt the proposed amendments to the explanatory note to NDRAppP 35:

Line 1: delete "represents an effort by the Committee to codify in these rules" and insert "codifies";

Line 8: after the word "deleted" insert "The first two sentences of subdivision (b) were amended, effective __________________, in conjunction with an amendment to NDRCivP 52, and are intended to provide the same standard of review for actions tried without a jury or with an advisory jury and for actions tried with a jury. Otherwise,";

Line 17: delete "The rule does not change existing appellate practice."

Mr. Peterson seconded the motion. Motion CARRIED.

Ms. Levine and Judge Burdick voted no.

Rule 35 codifies four statutes relating to the scope of review by the Supreme Court in civil and criminal cases, all of which have been superseded. Subdivision (a) is taken from former § 28-27-28, NDCC, except the last sentence of the statute regarding exceptions and a settled statement of the case was deleted. The first two sentences of subdivision (b) were amended, effective ____________________, in conjunction with an amendment to NDRCivP 52, and are intended to provide the same standard of review for actions tried without a jury or with an advisory jury and for actions tried with a jury. otherwise, subdivision (b) is a restatement of former § 28-27-29. Subdivision (c) is derived from § 29-28-27, and is similar in scope to subdivision (a), but it relates to criminal appeals. Subdivision (d) is derived from former § 29-28-28.

RULE 5, NDRCivP - Explanatory Note

Judge Kosanda MOVED to adopt the proposed amendments to the explanatory note to NDRCivP 5.

Line 1: after "(b)" insert "and"; after "(c)" insert "are similar to the corresponding"; delete ", and (d) are substantially the same as those";

Line 6: after "requirement" insert "in subdivision (b)";

Line 10: insert "Subdivision (d)(1) was amended, effective __________________, to alleviate storage problems caused by the filing of discovery materials. Subdivision (d)(1), as amended, limits the situations when discovery materials may be filed and requires the clerk to return to the filing party after the action is completed certain discovery materials that are filed."

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Line 23: after "and" insert "by adding language in the first paragraph to clarify"; delete "making clear";

Line 25: delete ",";

Line 26: insert "unless the court orders otherwise.";

Line 27: delete "had previously been made to the federal" and insert "follow the 1970 amendments to the federal".

Mr. Rund seconded the motion. Motion CARRIED.

Subdivisions (a), (b), and (c) are similar to the corresponding subdivisions of Rule 5, FRCivP, with the addition of a reference to specific methods of seizure of property in the second paragraph of subdivision (a), and the requirement in subdivision (b) of obtaining a court order to leave the paper or pleading with the clerk when no address is known for the party or attorney to be served.

Subdivision (d)(1) was amended effective __________________, to alleviate storage problems caused by the filing of discovery materials. Subdivision (d)(1), as amended, limits the situations when discovery materials may be filed and requires the clerk to return to the filing party after the action is completed certain discovery materials that are filed.

Subdivision (e), identical to Section 28-0630, NDRC 1943, provides for removal of any original pleading or paper from the clerk's files for service. This is not found in the federal rule.

In 1971, subdivision (a) was amended by adding the second paragraph concerning actions begun by seizure of property and by adding language in the first paragraph to clarify that all papers relating to discovery must be served on all parties unless the court orders otherwise. Those changes follow the 1970 amendments to the federal rule.

Subdivision (f) was added [effective July 1, 1981] to allow proof of service either as provided in Rule 4 or by an attorney's certificate. The certificate could be affixed directly to the original pleading or other paper by use of a stamp or other method in order to save paper and reduce bulky files.

RULE 30, NDRCivP - Explanatory Note

Judge Kosanda MOVED to adopt the proposed amendments to the explanatory note to NDRCivP 30.

Line 1: delete "substantially";

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Line 2, after "FRCivP" insert "with several deviations"; delete "only";

Line 3: delete "are"; insert "include";

Line 6: delete "making clear" and insert "clarifying";

Line 9: after ";" insert "the";

Line 11: after "and" insert "the reduction";

Line 12: delete "reduction of the federal"; insert "from" and "days under the federal rule to 10 days";

Line 13: delete "period";

Line 14: delete "to 10 days";

Line 16: insert "North Dakota";

Line 17: insert "and follows a 1972 amendment to the federal rule which refers to the Federal Rules of Evidence.";

Line 25: delete "then" and insert "than";

Line 28: insert "Subdivision (f) was amended, effective __________________, to reflect the ________________ amendment to NDRCivP 5(d)(1) which limited the situations when discovery materials may be filed. Subdivision (f), as amended, requires the officer taking the deposition to deliver the original transcript or send it by registered or certified mail to the party noticing the deposition. Subdivision (f)(3) relating to the notice of filing the deposition was deleted."

Mr. Rund seconded the motion. Motion CARRIED.

Rule 30 is derived from Rule 30, FRCivP, with several deviations. The deviations include the deletion from subdivision (b)(2)(A) of requirements that do not conform to state practice; the addition to subdivision (b)(3) of the last sentence clarifying that the court may take into account the convenience of parties and witnesses and the interests of justice in regulating the time and order of taking depositions; the addition to subdivision (c) of a provision to allow the court to order who pays the cost of transcription; and the reduction in subdivision (e) from 30 days under the federal rule to 10 days for the witness to sign the deposition.

Subdivision (c) was also amended, effective January 1, 1980, to refer to the North Dakota Rules of Evidence (see Rule 611), rather than Rule 43(b) and follows a 1972 amendment to the federal rule which refers to the Federal Rules of Evidence. Deviating again from the federal rule, sub-

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division (b)(4) was amended, effective January 1, 1980, to allow audio-visual depositions without a court order. Because of this deviation, the 1980 amendments to the first sentence of subdivision (b)(4) of the federal rule, concerning stipulations for recording by other than stenographic means, were not adopted. Stipulations are covered by Rule 29.

Subdivision (f) was amended, effective ________________________, to reflect the ________________ amendment to NDRCivP 5(d)(1) which limited the situations when discovery materials may be filed. Subdivision (f), as amended, requires the officer taking the deposition to deliver the original transcript or send it by registered or certified mail to the party noticing the deposition. Subdivision (f)(3) relating to notice of filing the deposition was deleted.

RULE 30.1, NDRCivP - Explanatory Note

Mr. Peterson MOVED to adopt the proposed amendment to the explanatory note to NDRCivP 30.1.

Line 70: insert "Subdivision (d)(9) was amended, effective _______________ to reflect the _______________________ amendment to NDRCivP 5(d)(1), which limited the situations when discovery materials may be filed. Subdivision (d)(9), as amended, requires the operator taking the audio-visual deposition to deliver it or send it by registered or certified mail to the party noticing the audio-visual deposition."

Judge Kosanda seconded the motion. Motion CARRIED.

Rule 30.1 is substantially the same as the Uniform Audio-Visual Deposition Rule as drafted by the National Conference of Commissioners on Uniform State Laws.

The taking of depositions by other than stenographic means has previously been allowed by Rule 30(b)(4) pursuant to court order. However, as stated in the official comment to the Uniform Rule:

"This Rule (1) does not require a court order for the taking of an audio-visual deposition; (2) sets out uniform standards for recording, preserving, filing, and using the depositions rather than leaving it to individual orders; and (3) specifically designates the audio-visual recording as an official record of the deposition.

"The provisions for audio-visual depositions contained in this Rule supplement, and are in addition to, the general provisions applicable to the taking and use of depositions."

Subdivision (a)(2), as indicated in the official comment:

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"Provides that the audio-visual recording is an official record of the deposition. If a typewritten transcript is prepared * * * (as prescribed by Rule 30(c)) it too is an official record of the deposition. Both can be used by the parties for briefing, argument, and appeal. In the event of conflict between the two records, the court would have to resolve the disparity, just as it might now, if the witness contended the stenographic transcription was inaccurate. Because the audio-visual recording is an exact recording, it would normally be relied upon to resolve any disparity; but, in rare circumstances, perhaps the stenographic transcription might be adopted by the court as a better recording."

Subdivision (a)(3) allows the court to order the proponent of the deposition to bear the expense of preparing a typewritten transcript when "good cause" is shown. The transcript could either be prepared simultaneously with the audio-visual recording or at a later time from the audio portion of the audio-visual recording.

The use of an audio-visual deposition, as stated in subdivision (b), is the same as for a stenographic deposition, which is found in Rule 32. The official comment suggests other uses and some advantages of this type of deposition:

"This Rule does not expand the use of depositions; however, as is true with other depositions, the parties may wish to stipulate the use of an audio-visual deposition in a situation where its fuse is not authorized hereby. In such an event, an audio-visual recording is superior to the reading of a stenographic deposition, because it provides an exact visual and audio recording of the testimony. If has many of the attributes of live testimony and will be advantageous for taking of medical and other expert testimony where both delay and cost may be minimized substantially by an audio-visual recording."

Subdivision (d) specifies procedures to be followed in recording an audio-visual deposition. These procedures are designed to insure integrity of the recording and uniformity when the deposition will be used in other jurisdictions. In this subdivision, and throughout the Rule, provisions have been made for improved technology in the recording process. Changes in the Rule will be necessary when advancements are made in the recording medium (e.g., from the present "videotape" to a disc or other method) and associated equipment.

Subdivision (d)(9) was amended, effective____________________________

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to reflect the __________________ amendment to NDRCivP 5(d)(1), which limited the situations when discovery materials may be filed. Subdivision (d)(9), as amended, requires the operator taking the audio-visual deposition to deliver it or send it by registered or certified mail to the party noticing the audio-visual deposition.

The official comment to subdivision (d) expanded on several areas:

"In paragraph (6) indexing is by 'time generator or other method * * *' in anticipation that yet better techniques for indexing may be developed.

"Paragraph (7) provides that objections will be handled in the same manner as for stenographic depositions. However, the Special Committee anticipates that, for ease of editing of objections and testimony ordered to be struck, the parties may frequently wish to stipulate that objections may be made immediately after the answer.

"The Rule does not set out alternative methods of editing because improving technology may develop better techniques than those presently employed. Various techniques are currently used for editing, including (1) preparation of an edited copy omitting testimony that has been struck and (2) suppressing the audio, or audio-visual, display of any portion of the testimony struck. The integrity of the recording, regardless of the editing technique employed, requires that the original recording remain unaltered and thus paragraph (8) so provides.

"No provisions are included for retention and storage of the recording by the clerk of court or its return at the conclusion of the proceedings. Local rules can best make provision for those matters. If the clerk of court has display equipment that cannot erase, free accessibility under his supervision would be appropriate. If not, controls should be developed by local rule or court order to preserve the integrity of the recording from inadvertent, or intentional, erasing or destruction of the recording. The videotape itself is reusable and normally should be returned to the party supplying it when the case is concluded."

RULE 32, NDRCivP - Explanatory Note

Mr. Peterson MOVED to adopt the proposed amendments to the explanatory note to NDRCivP 32.

Line 3: insert "and the deletion, in subdivision (a)(4), of the requirement that depositions be duly filed in a former action before they may be used in a later action."

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Judge Kosanda seconded the motion. Motion CARRIED.

Rule 32 is identical to Rule 32, FRCivP, except for reference in subdivision (a)(1) to the North Dakota Rules of Evidence rather than the federal rules, and the deletion, in subdivision (a)(4), of the requirement that depositions be duly filed in a former action before they may be used in a later action. Effective January 1, 1980, subdivision (c), on the effect of taking or using depositions, was abrogated to conform to federal amendments subsequent to the adoption of the Rules of Evidence. As the Notes of the Advisory Committee on the 1975 amendments to the civil rules state:

"The concept of 'making a person one's own witness' appears to have had significance principally in two respects: impeachment and waiver of incompetency. Neither retains any vitality under the Rules of Evidence. The old prohibition against impeaching one's own witness is eliminated by Evidence Rule 607. The lack of recognition in the Rules of Evidence of state rules of incompetency in the Dead Man's area renders it unnecessary to consider aspects of waiver arising from calling the incompetent party-witness. subdivision (c) is deleted because it appears to be no longer necessary in the light of the Rules of Evidence."

RULE 28, NDRAppP - Explanatory Note

Judge Kosanda MOVED to adopt the proposed amendments to the explanatory note to NDRAppP 28.

Line 13: insert "Subdivision (a), as amended effective _____________, contains several changes. subdivision (a)(2) requires the appellant's brief to contain a jurisdictional statement. Subdivisions (a)(4) and (5) require the briefs to be concise. Subdivision (a)(7) requires the brief to contain a statement of any objections to the hearing being broadcast, televised, recorded, or photographed. See AR 21-A(3).

subdivision (g), as amended effective ____________________, requires that a motion for an extension of page limits of the brief must assert careful editing and state the number of additional pages requested."

Judge Berning seconded the motion. Motion CARRIED.

This rule is derived from Rule 28, FRAppP. The major change from previous practice is the elimination of reference to the assignment of errors. Section 28-18-09, NDCC, which required a specification of errors in appeals, has been superseded. With the elimination of the assignment of errors, the correct statement of the legal issues is doubly

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important. Each legal issue should be stated as a question of law sufficiently specific to allow the court to understand the precise issue presented. Generalized statements such as, "Is the verdict supported by the evidence?" are not sufficient.

Subdivision (a), as amended effective _____________________, contains several changes. Subdivision (a)(2) requires the appellant's brief to contain a jurisdictional statement. Subdivisions (a)(4) and (5) require the briefs to be concise. Subdivision (a)(7) requires the brief to contain a statement of any objections to the hearing being broadcast, televised, recorded, or photographed. See AR 21-A(3).

Subdivision (g), as amended effective ______________________, requires that a motion for an extension of page limits of the brief must assert careful editing and state the number of additional pages requested.

Subdivision (h) specifically relates to cross-appeals. It differs from the Federal Rule in specificity of the contents of the briefs and in a statement that the party first filing the notice of appeal, not the plaintiff in the trial court, is deemed to be the appellant, unless otherwise stipulated or ordered.

If a cross-appeal is filed, reference should be made to Rule 30(b), which requires the cross-appellant to designate the issues he intends to present for review.

DISCOVERY

Mr. Peterson MOVED that staff counsel contact the State Bar Association and the Executive Director of the North Dakota Trial Lawyers Association and work out a method of putting the suggested language into the Gavel and Pleader and solicit comments from lawyers. Mr. Lamb seconded the motion. Motion CARRIED.

ADJOURNMENT

Judge Burdick MOVED to adjourn. Mr. Loder seconded the motion. Motion CARRIED.

_________________________
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