Joint Procedure Committee Meeting
Scheduled on Thursday, April 27, 1995 @ 10:00 AM
MINUTES OF MEETING
Joint Procedure Committee
April 27-28, 1995
TABLE OF CONTENTS
Preliminary Matters 2
Approval of Minutes 2
Rule 16, N.D.R.Crim.P.-Discovery and Inspection 2
Rule 11, N.D.R.Civ.P.-Signing of Pleadings, Motions, and Other Papers; Sanctions 3
Rule 30, N.D.R.App.P.-Appendix to the Briefs 4
Rule 30, N.D.R.Civ.P.-Depositions Upon Oral Examination 5
Rule 32, N.D.R.Civ.P.-Use of Depositions in Court Proceedings 7
Family Law Ad Hoc Committee Summary Report 8
Rule 8.2-Interim Orders in Domestic Relations Cases 9
Rule 32, N.D.R.App.P.-Form of Briefs, Appendix and Other Papers 15
Rule 30, N.D.R.Civ.P.-Explanatory Note 17
Rule 8.4, N.D.R.O.C.-Summons in Action for Divorce or Separation 17
Rule 56, N.D.R.Civ.P.-Summary Judgment 21
CALL TO ORDER
The meeting was called to order at approximately 9:00 a.m., April 27, 1995, by Justice Beryl J. Levine, Chairperson.
ATTENDANCE
Present:
Justice Beryl J. Levine
Honorable Wallace D. Berning
Honorable Bruce E. Bohlman
Honorable Gail Hagerty
Honorable Ronald L. Hilden
Honorable Maurice D. Hunke
Honorable Lawrence A. Leclerc
Honorable James H. O'Keefe
Honorable Kirk Smith (4/27/95 only)
Honorable James A. Wright
Mr. Michael R. Hoffman
Mr. John C. Kapsner
Professor Larry Kraft
Mr. James L. Lamb
Mr. Ronald H. McLean (4/27/95 only)
Ms. Sherry Mills Moore
Mr. James T. Odegard
Ms. Cathy Howe Schmitz
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Absent:
Ms. Patricia R. Ellingson
Mr. Robert C. Heinley
Staff:
Mr. Gerhard Raedeke
PRELIMINARY MATTERS
The Committee was informed of upcoming meeting dates. Meetings are scheduled for September 28-29, 1995, at the Bismarck Kelly Inn; January 25-26, 1996, at the Bismarck Radisson; and April 25-26, 1996, at the Fargo Radisson.
APPROVAL OF MINUTES
Judge Hagerty MOVED that the minutes from the Joint Procedure Committee meeting held on January 26-27, 1995, be approved as submitted. The Motion was seconded by Mr. Odegard. Motion CARRIED.
RULE 16, N.D.R.Crim.P.-DISCOVERY AND INSPECTION (PAGES 23-26 OF THE AGENDA MATERIAL).
The Committee reviewed Senate Bill 2369 which provides for expanded discovery, including reciprocal discovery of witnesses, in criminal cases. Previously, at two other meetings, the Committee had considered whether the defense should be required to disclose its witnesses. The Committee had decided that additional discovery should not be allowed. Thus, Senate Bill 2369 conflicts with the intent of the Committee.
The Committee noted that the Legislature can enact rules of procedure as long as the legislation does not conflict with a rule of procedure promulgated by the court. The Committee discussed whether conflicts exist between Rule 16, N.D.R.Crim.P., and Senate Bill 2369, or whether the Bill supplements Rule 16.
The Committee concluded that a conflict clearly exists in light of the Committee's previous action. Also, it is not necessary for Rule 16 to expressly provide that there is no discovery of defense witnesses. The rule does not have to provide what cannot be done, the rule only has to provide what can be done. Rule 16 governs discovery; the field is already covered.
The Committee considered whether it should petition the Supreme Court to supersede Senate Bill 2369; or whether the conflict between Rule 16 and Senate Bill 2369 should come before the Supreme Court on appeal.
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The Committee expressed frustration with the proponents of the Bill, and the Legislature, for knowingly circumventing the Committee's previous decisions.
Others questioned whether petitioning the Supreme Court to supersede the statute would be overly confrontational. Committee members thought the issue would come before the Court fast enough. The Committee voted not to petition the Supreme Court to supersede Senate Bill 2369; even though the Committee agreed that Senate Bill 2369 is procedural, conflicts with Rule 16, and should be superseded.
RULE 11, N.D.R.Civ.P. - SIGNING OF PLEADINGS, MOTIONS, AND OTHER PAPERS; SANCTIONS (PAGES 27-31 OF THE AGENDA MATERIAL).
Staff explained that the relationship between Rule 11(c), N.D.R.Civ.P., and Rule 3.2, N.D.R.O.C., is unclear as to when briefs must be served and filed. Rule 11(c) provides a safe harbor by providing that a motion for sanctions may not be filed until 21 days after service of the motion. Rule 11(c) does not address when the brief in support of the motion must be served and filed and when the answer brief must be served and filed.
Rule 3.2 provides that an answer brief must be served and filed within 10 days after service of the movant's brief. The problem is that under Rule 11, if the movant serves a brief with the motion, the respondent's answer brief must be filed before the 21 safe harbor days have passed.
The proposed amendment provides that a brief in support of a motion for sanctions may not be served or filed until the motion for sanctions is filed. The proposed amendment will prevent a respondent from having to serve and file a brief before the motion for sanctions is filed.
The Committee considered another option. The Committee considered amending subdivision (c) to provide that sanctions may not be imposed within 21 days, so that normal motion practice under Rule 3.2 could continue. Other Committee members argued that material should not be required to be filed with the court if the responding party is going to be given the opportunity to withdraw the allegations.
Committee members noted that under the proposal the moving party will not be allowed to serve a brief with the motion. Without service of a brief with the motion, the Committee questioned whether the responding party will have enough information to know whether to contest the motion. Others noted that Rule 7, N.D.R.Civ.P., requires that motions state with particularity the grounds for the motion. Committee members argued that the movant should not be prevented from serving a brief with the motion.
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Staff indicated that the proposal is intended to allow allegations to be withdrawn without getting the court involved or requiring the parties to prepare briefs. Greater tolerance of initial pleadings is allowed under amended Rule 11. Therefore, there will be an increased need to withdraw allegations without court involvement and the necessity of briefs.
Other Committee members suggested adopting a notice procedure whereby the adverse party is advised that if the allegations are not withdrawn within 21 days a motion for sanctions will be filed. Adopting a notice procedure would preserve the integrity of Rule 3.2 motion practice as applied to Rule 11.
Another alternative was mentioned. The motion could be required to contain a certification that the movant attempted in good faith to have the allegations withdrawn before involving the court by filing a motion.
The Committee decided to reject the proposed amendment to Rule 11 on page 28 for the time being. The Committee decided to adopt the proposed language in the explanatory note on page 30, which provides that Rule 11 governs to the extent Rule 11 and Rule 3.2, N.D.R.O.C., conflict.
RULE 30, N.D.R.App.P. - APPENDIX TO THE BRIEFS (PAGES 32-48 OF THE AGENDA MATERIAL).
The Committee reviewed the Supreme Court's emergency amendment of Rule 30, N.D.R.App.P., effective March 1, 1995. The emergency amendment requires a reference in the table of contents indicating where each document in the appendix may be found in the record. The Supreme Court is increasingly having trouble with attorneys including documents in the appendix that are not part of the record.
On page 39, the Committee reviewed the proposal to amend Rule 30 that the Committee had previously approved. Subdivisions (d) and (e) contained additional amendments for the Committee's consideration.
Subdivision (d) contains the substance of the court's emergency amendment by requiring the table of contents to include the docket number for each item in the appendix. Subdivision (d) is also rewritten for stylistic purposes and to eliminate language governing how pages of the appendix must be prepared if typed.
In the proposal, subdivision (e) is deleted to avoid encouraging separate appendices for exhibits. The provision is rarely used.
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Committee members questioned the value of requiring the docket number for each item in the appendix to be included in the table of contents. Committee members thought that the more effective way of resolving the problem is to sanction attorneys who violate the rule by including documents in the appendix that are not part of the record.
Even if the proposal is adopted, attorneys will still have to file a motion to strike certain portions of the appendix, unless the Clerk of the Supreme Court is going to remove pages from the appendix that are not part of the record. Committee members also questioned whether all documents included in the appendix will have a docket number. Will an exhibit not admitted, or an instruction not given, have a docket number?
Committee members were opposed to the emergency amendment because of the extra clerical work that would be involved. Committee members suggested that it could cost clients as much as $500 in legal fees to include the docket number in the table of contents for each item included in the appendix. Members commented that the Rules of Appellate Procedure should not just be for the convenience of the court.
Others suggested that requiring the docket number to be included in the table of contents will prevent extraneous material from being included in the appendix as a result of inadvertence or sloppiness.
Ms. Schmitz MOVED to adopt the additional amendments to Rule 30(d) and (e) on pages 44 and 45. Judge Smith seconded. Motion CARRIED.
RULE 30, N.D.R.CIV.P. - DEPOSITIONS UPON ORAL EXAMINATION (PAGES 49-79 OF THE AGENDA MATERIAL).
The Committee reviewed the proposal to amend Rule 30 to follow the 1993 federal amendment. At the last meeting, the Committee thoroughly discussed the Rule, but a motion for its adoption was tabled so that there could be further consideration.
Staff reviewed the proposed amendment to subdivision (a) and (b). The proposal rearranges subdivision (a) and (b) so that the provisions regarding when leave to take a deposition is required are all in subdivision (a).
Lines 74 through 79 of the proposal provide for taking a deposition by sound, sound-and-visual, or stenographic means. Mr. Kapsner MOVED that lines 74 through 79 be deleted. Judge Leclerc seconded.
Committee members expressed concern that the rule does not specify who is to prepare the transcript from a recording. Committee members did not want opposing counsel's secretary
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preparing the transcript from a tape recording. Concern was also expressed about deponents reviewing and signing depositions in opposing counsel's office. Committee members were afraid that opposing counsel might make suggestions as to what the answers should be if portions of the tape are inaudible.
The Committee noted that pro se litigants could also conduct depositions by tape recorder. Your mainstream lawyer is not the person who is going to be using a tape recorder. Committee members expressed concern that with cheap tape recorders you will not get good recordings. Currently, there is a problem with the quality of recordings in administrative hearings.
Committee members commented that audio-video depositions are not that expensive. They are also more reliable than sound only tape recordings, because you have the person mouthing the words at the same time.
Committee members were concerned about the effect adoption of the proposed Rule would have on court reporters. Court reporters provide quality transcripts and integrity to the system.
Other Committee members commented that the proposal will provide access to information at a low cost for poor litigants. The use of court reporters does not guarantee accuracy.
Committee members commented that opposing counsel will not invite witnesses to their office for the reading and signing of depositions. Counsel will not suggest interpretations to witnesses, as to what was said that are more favorable to their side. Lawyers will not want to provide impeachment evidence for the other side. Lawyers will take steps to ensure that the reliability of the deposition is not questionable.
The Committee noted that Rule 28, N.D.R.Civ.P., provides that the person before whom the deposition is taken must be a disinterested person. The person before whom a deposition can be taken cannot be an employee of the attorney taking the deposition. The officer before whom the deposition is taken is the one that certifies that the deposition is a true record of the testimony given by the witness under Rule 30.
The Committee noted that Line 76 gives the court the power to order that a deposition not be recorded by nonstenographic means. In addition, people can protect themselves by bringing their own stenographic reporter or tape recorder to the deposition. Committee members suggested that the rule should require an agreement between the parties as to who is going to transcribe the recording.
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Committee members commented that discovery by tape recorder makes sense in family law proceedings where the parties may have limited finances. Committee members suggested that tape recorders should be allowed for informal discovery. The recordings should only be allowed to be used for informational purposes.
Other members stated that an attorney can interview someone, record the conversation, and use the recording for impeachment purposes. Committee members questioned why a tape recorded deposition should not be allowed for impeachment purposes. Others said that the difference is that witnesses can be compelled to attend a deposition.
Committee members commented that quality recording equipment will be used. Otherwise, the parties will not be able to use the recording at trial.
A vote was taken on the motion to delete language on lines 74-79 allowing depositions to be recorded by sound, sound-and-visual, or stenographic means. Motion CARRIED. As a consequence, the Committee's consideration of Rule 30 ended. The rest of Rule 30 sets forth the procedures for recording depositions by nonstenographic means. The Committee was satisfied with North Dakota's Rule 30.1, because it already allows depositions to be recorded by audio-visual means. The Committee did not want depositions recorded by sound only means.
RULE 32, N.D.R.CIV.P. - USE OF DEPOSITIONS IN COURT PROCEEDINGS (PAGES 80-87 OF THE AGENDA MATERIAL).
The Committee considered a proposal to amend Rule 32, N.D.R.Civ.P., to follow the 1993 federal amendment. The proposed amendment to subdivision (a) provides that a deposition may not be used against a party if the party received less than 11 days notice before the deposition and promptly filed for a protective order.
Committee members commented that currently reasonable notice for a deposition is generally considered to be 5 days. Committee members commented that 5 days is not enough notice.
Committee members questioned why the burden should be on the person receiving notice to get a protective order when there has been less than 11 days notice. Other Committee members commented that as a practical matter, most of the time the party taking the deposition will change the date of the deposition if there is a problem. The party receiving notice is the party who will know whether they can comply with the notice of deposition.
When there has been less than 11 days notice, the Committee did not think the burden to get court authorization
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should be switched to the party seeking to take the deposition. The rule is currently working. In addition, if a party files for a protective order, they will generally not be sanctioned for not appearing at the deposition. Rule 37(d)(3) provides that failure to appear may be excused, if the party failing to act has applied for a protective order.
Committee members questioned the need for proposed lines 43 through 48. Those lines provide that a deposition cannot be used if the party was unable to obtain counsel to represent it at the taking of the deposition. Committee members commented that the situation never arises. Other Committee members said that the provision does make sense because a deposition can be taken without leave of court prior to 30 days after service of the summons and complaint under Rule 30, N.D.R.Civ.P.
Mr. Lamb MOVED to adopt the proposed amendment to subdivision (a). Judge Hunke seconded. Motion CARRIED.
The Committee reviewed the proposed amendment to subdivision (c) of Rule 32. The proposal provides that if a party uses deposition testimony in nonstenographic form, the court and the other parties must be provided with a transcript. The proposal also provides that deposition testimony must be presented in nonstenographic form upon request in a jury trial if available. The Committee questioned why a deposition could only be required to be presented in nonstenographic form if the case is tried before a jury. Others said that in a court trial, the judge may want to read the deposition.
The suggestion was made that if a party is paying for an audio-visual deposition, they should have the choice as to whether they want to show the audio-visual deposition or read the deposition.
Committee members commented that it is expensive to bring the audio-visual equipment to court if the equipment is not available. Other Committee members said that most courts will have the equipment available. Judge Leclerc MOVED to adopt the proposed amendment to subdivision (c). Mr. Odegard seconded. Motion CARRIED.
Mr. Lamb MOVED to approve the explanatory note as proposed. Ms. Schmitz seconded. Motion CARRIED.
FAMILY LAW AD HOC COMMITTEE SUMMARY REPORT (PAGES 88-95 OF THE AGENDA MATERIAL).
The Committee reviewed the summary report from the Family Law Ad Hoc Committee. For over a year, the Family Law Committee has worked on proposals to improve family law proceedings. The Committee was formed by the Family Law section
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of SBAND and the Judicial Conference in response to a Senate resolution calling for study. Judge Bohlman and Sherry Mills Moore co-chaired the Committee. Basically, the Family Law Committee focused its attention in three areas: (1) interim orders; (2) case management; and (3) an alternative summary process.
RULE 8.2 - INTERIM ORDERS IN DOMESTIC RELATIONS CASES (PAGES 96-102 OF THE AGENDA MATERIAL).
The Committee reviewed proposed Rule 8.2(a)(1) and (2), N.D.R.O.C. The proposal is intended to decrease the use of ex parte interim orders by providing that ex parte interim orders may only issue upon exceptional circumstances.
Regarding paragraph (1), the Committee questioned whether there is a difference between subparagraph (A) and subparagraph (B), which define exceptional circumstances. The marital estate is only protected by subparagraph (B). Subparagraph (A) implies something more physical or immediate and does not protect the marital estate. Subparagraph (A) is probably included in subparagraph (B).
Regarding paragraph (2), the Committee questioned why the movant must appear personally to obtain an ex parte restraining and eviction order. Judges stated that they typically rely on the affidavit without personally questioning the movant. Other judges indicated that they will put the movant on the stand and have his or her lawyer ask questions, and that they will ask additional questions of their own. Some judges wanted a record created to stress the importance of the application. Restraining and eviction is different. Kicking someone out of their own home is a fairly drastic measure. Other judges said that depending on the circumstances, sometimes they will talk to the movant without creating a record. The proposal leaves it up to the individual judge whether to hold an inquiry.
The Committee reviewed subdivision (a)(3) which cites the provisions that may be included in an ex parte interim order. The Committee questioned why the rule was limited to an order governing use of personal property rather than "real or personal property." The Committee instructed that the rule should expressly provide that the interim order may contain provisions governing "real or personal property."
The Committee discussed whether attorney's fees should be allowed in an ex parte interim order. Attorney's fees are not awardable in an ex parte interim order to discourage ex parte interim orders. Attorney's fees may only be awarded upon motion and notice. The Committee commented that the issue of attorney's fees is really a timing issue.
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Next, the Committee reviewed subdivision (a) (4). The proposal again attempts to discourage ex parte interim orders by providing that if there has been an appearance by the adverse party, the court is to hold an emergency hearing at which both parties may be heard. Committee members commented that the word "appearance" is a word of art. An appearance is made by service of an answer. Regardless of whether there is an appearance, the party seeking an ex parte interim order may know the other side is represented.
Committee members commented that there is an ethical obligation to advise a judge that the other side is represented. The biggest abuse of interim orders involves attorneys going to a judge without telling the judge that the other side has counsel. It happens a lot. Committee members said that judges should ask whether the other side has counsel.
The Committee instructed that the following language be substituted in subdivision (a)(4):
"If there has been an appearance in the action by the adverse party, or if the attorney for the moving party has knowledge that the adverse party is represented by an attorney, the attorney for the moving party shall notify the court. After receiving notice of the appearance or representation, the court shall attempt to hold an emergency hearing, either in person or by telephonic conference, at which both parties may be heard, before issuing an order."
The Committee further instructed that the word "full" on line 30 be eliminated.
The Committee next considered proposed subdivision (a)(5) which contains provisions an ex parte interim order must contain. An ex parte interim order must provide that the adverse party is entitled to a hearing; that the motion must be made within 10 days after service of an interim order; and that the motion must be heard within 30 days from the date of request. Requiring a hearing on the ex parte interim order within 30 days is intended to discourage ex parte interim orders by limiting the need.
On line 46, the Committee questioned what constitutes the "date of the request." The language is introducing a new concept. Currently, time frames run from the date of service or date of filing. The Committee agreed that the sentence on line 45 and 46 should provide that the hearing must be held within 30 days from the "date the motion is filed." The motions have different titles so it is not possible to be any more explicit. In context, the language is clear because the immediate paragraph indicates that the motion being referred to is a motion in response to an ex parte interim order.
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On line 47, the Committee instructed that the language "more immediate" be removed and substituted with the words "an earlier." The Committee also instructed that the words "pursuant to" on line 47 be substituted with the word "under." Finally, the Committee instructed that the word "requested" on line 45 be removed.
The Committee questioned the relationship between subdivision (a)(5)(C) and subdivision (e). Subdivision (a)(5)(C) provides that the hearing must be held within 30 days. The Committee was concerned that if the hearing is held immediately after the motion is filed, the parties will not get the time allotted in subdivision (e) for preparation and filing of supporting papers. Committee members concluded that as a matter of practice, there will not be a problem with hearings being held too soon. The real problem is getting a hearing within 30 days from the date of filing.
Next, the Committee considered subdivision (b) on page 97, which governs regular interim orders. The Committee discussed ways of improving the grammar in paragraph (1). The Committee also questioned why the court should be limited to ordering payment for the enumerated items. The Committee instructed that the language in paragraph 1 should provide as follows:
"An interim order may provide for payment of support and other appropriate expenses."
The Committee discussed whether payment for expenses can be ordered separately from support. Committee members commented that support is paid through the clerk of the district court, whereas other expenses are paid directly to the party. The Committee thought that direct payments are important for the preservation of the marital estate, and because of their immediacy in temporary situations.
The Committee questioned whether the rule can provide that expenses may be paid other than through support without statutory authorization. Support includes payments intended to cover various expenses. The Committee noted that Section 14-05-23, N.D.C.C., only specifies payment of support. The Committee also noted that 14-05-25.2, N.D.C.C., provides that spousal support must be treated as an order for child support for enforcement purposes. Other Committee members commented that the rule has always provided for payment of additional expenses besides support.
The Committee instructed that subdivision (a)(3) should also be amended to empower the court to award other appropriate expenses along with support. Subdivision (a)(3) should provide as follows:
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"The provisions which may be included in an ex parte interim order are temporary custody, support and other appropriate expenses, use of real or personal property, restraining and eviction."
The provision allowing the court to award appropriate expenses in both ex parte orders and regular interim orders is necessary. The Committee noted that an ex parte order can become the interim order, if the parties do not move for a hearing on the ex parte order.
The Committee instructed that the phrase "upon motion" be eliminated in subdivision (b)(1), (2) and (3). A regular interim order must be issued upon motion and notice. The Committee instructed that the point heading to subdivision (b) should be amended to provide as follows: "Interim Orders Upon Motion and Hearing." The Committee also noted that subdivision (d) provides for a motion and notice of motion.
The Committee reviewed subdivision (c) on page 99. The Committee noted that a judge must be able to provide interim relief by allowing payment of other appropriate expenses in addition to support payments. There will be situations when payment of other appropriate expenses will be required, not as support, but to preserve the assets for the purpose of the property division. In other cases, payments such as utility bills will be part of the interim support award. Payments that are necessary for the preservation of the marital estate and not as support, should not be required to be paid through the clerk of the district court.
The Committee reviewed proposed subdivision (d) on page 100. The proposal provides that the court is to schedule a hearing for interim relief no later than 30 days from the date of filing the motion. Committee members commented that the proposed language requires the court to schedule the matter for hearing rather than hold the hearing within 30 days. The Committee instructed that the language should provide as follows:
"If a notice of motion and motion are served to obtain an interim order,, the court shall hold a hearing no later than 30 days from the date of filing the motion."
Committee members questioned what would happen if a judge does not hold the hearing within 30 days. Judges expressed concern about creating more mandatory timeliness. For instance, there are already speedy trial requirements in criminal cases. Juvenile and mental health hearings must be held within certain time limits. Adult abuse protection order hearings are required within 14 days after the motion is made. Judges argued that scheduling is already done as expeditiously as possible.
Committee members suggested that the rule provide that the court "should" hold a hearing no later than 30 days from the
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date of filing, rather than providing that the court "shall" hold a hearing no later than 30 days from the date of filing. Other Committee members argued that if "should" is used, the problem is not solved. It takes four to five months to get an interim order hearing in the South Central Judicial District. If the rule is only advisory, there will not be a change in practice.
Committee members commented that a judge can be reported to the Judicial Conduct Commission for not getting orders out in a timely manner.
Committee members suggested the solution is to schedule a short hearing to comply with the 30-day requirement and continuing the hearing if necessary. Ninety percent of cases will be based on affidavit anyway. Others argued that continuing a hearing is a poor solution for the litigants.
The Committee noted that there are fewer ex parte orders because of the adult abuse protection statute which allows the parties to get an immediate hearing. Others said adult abuse protection hearings do not take much time, so it is not a problem holding the hearing within 14 days.
Judges commented that part of the problem lies with the court administrators' scheduling practices. Also, the rule assumes that the court will issue its order in a timely manner after holding the hearing within 30 days from the date of filing.
The Committee reviewed proposed subdivision (e) on page 100. Subdivision (e) requires each party to file an itemized financial statement. Committee members argued, the exact form shown in Appendix A should not be required. Other Committee members argued, uniformity is important. Filed papers are easier to work with if they are following the same basic format. The Committee instructed that the word "illustrated" be substituted for the word "shown" on line 131. The Committee also instructed that the point heading should be "Submission of Evidence" rather than "Form of Evidence."
The Committee questioned why the phrase "evidentiary hearing" is used on line 136. The phrase "evidentiary hearing" is used to indicate that the sentence is applicable to regular interim order hearings and not an application for an ex parte interim order. The phrase "evidentiary hearing" indicates that the sentence is not referring to ex parte interim orders that are issued upon motion and supporting papers. Thus, the affined only needs to be available for cross-examination if the application for interim relief is not ex parte.
The Committee discussed subdivision (f) on page 101. Subdivision (f) provides that the moving party shall have the burden of proof in interim hearings. The Committee questioned which party is the moving party. Either the party who initially
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moves for the ex parte interim order or the party moving for a hearing on the ex parte interim order could be considered the moving party. Current practice is uncertain.
The Committee noted that if the burden of proof is on the moving party, that party loses on every 50-50 issue when really the parties ought to split. The Committee commented that the person requesting eviction should have the burden of proof. Each party has a burden of proof regarding division of property and child custody issues. Both parties are coming to the hearing wanting relief.
The Committee stated that one of the parties has to have the burden of going forward. Somebody must start.
The Committee discussed who should have the burden of proof. Some argued that the party moving for the ex parte order has already met his or her burden, and that the burden of proof should be on the party moving to quash or modify the ex parte interim order. Others argued that the party who moved for the ex parte interim order should have the burden of proof because the original order was obtained ex parte. Members commented that both parties are at risk, unless they present evidence. The rule should provide who has the burden of proceeding first. Specifying who has the burden of proof should not be done by rule.
Judge Bohlman MOVED that subdivision (f) provide as follows:
"Burden of Going Forward. The party initially moving for interim relief shall have the burden of going forward with the evidence."
Committee members argued that the burden of going forward equals the burden of proof. The majority of the Committee thought that the burden of proof should remain with the person who initially sought ex parte interim relief. The Committee noted that going first in an interim hearing means putting your witness on the stand for cross-examination. Judge Bohlman withdrew his motion.
Mr. McLean MOVED to delete subdivision (f), and on line 138 after the word "examination," to insert the following sentence: "The party initially seeking interim relief shall proceed first at the hearing." Judge Smith seconded. Motion CARRIED.
The Committee noted that currently the practice varies regarding the issuance of interim orders. Some judges hear the motion on affidavit with oral argument. Other judges require testimony from witnesses.
Judge Hagerty MOVED to adopt Rule 8.2 as discussed and amended. Ms. Schmitz seconded. Motion CARRIED. Judge Hunke
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MOVED to adopt the explanatory note as proposed. Professor Kraft seconded. Motion CARRIED.
The meeting recessed at approximately 4:30 p.m.
APRIL 28, 1995 - FRIDAY
The meeting reconvened at approximately 9:00 a.m. Justice Levine introduced Ms. Penny Miller, Clerk of the Supreme Court. Ms. Miller was present to assist the Committee with its consideration of proposed Rule 32, N.D.R.App.P.
RULE 32, N.D.R.APP.P., FORM OF BRIEFS, APPENDIX AND OTHER PAPERS (PAGES 130-142 OF THE AGENDA MATERIAL).
Staff reviewed Rule 32, N.D.R.App.P. Rule 32 does not clearly provide whether footnotes and quotations must be single-spaced or double-spaced, and the rule does not clearly specify the required type size. The Supreme Court has had trouble with attorneys using small type that is difficult to read. Attorneys are also using single-spaced footnotes to circumvent page limitations.
The requirement for Pica type is unclear and outdated. Dictionary definitions vary as to whether Pica is defined as 12-point type or 10 characters per inch.
Committee members criticized the proposal's requirement for monospaced typeface. Most computer fonts use proportional typeface. Committee members were also opposed to requiring quotations and footnotes to be double-spaced. Committee members argued that the rule should stay consistent with The Bluebook. The proposal asks people to go against what they have learned. Committee members also commented that proportional typeface is easier to read than monospaced typeface.
Committee members suggested requiring that briefs contain no more than a certain number of words. A word limit would resolve the problem of attorneys using small type, and single-spaced footnotes, to circumvent the page requirements.
It was suggested that the rule allow proportional typeface in a proportional 12-point typeface with no more than 10 to 13 characters per inch. Otherwise, the Committee would be proposing an outdated rule because monospaced typeface is basically typewriter type. Allowing 10 to 13 characters per inch would accommodate the proportional 12-point fonts.
The Committee reviewed the preliminary draft of the proposed amendment to Rule 32, Fed.R.App.P. The preliminary draft contains limits on the number of words that may be used.
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An attorney is required to file a certificate of compliance with the word limits of the federal rule. Computers have the capability of counting the number of words in a document. The Committee also stated that with a word count, footnotes and quotations can be single-spaced without affecting the size of the brief.
By consensus, the Committee agreed to substitute the following language on lines 10 through 15:
"Typed or printed pages must be double spaced in a 12 point font with 10 to 13 characters per inch. A brief may contain no more than ___________ words. Footnotes must be single-spaced in the same size type as the text of the brief, and quotations may be indented and single-spaced."
Committee members stated that 12-point type should be required. Otherwise the Court will get point headings and titles in different type sizes than the rest of the brief.
The Committee decided to adopt the language from the preliminary draft of the federal rule, and insert that language on line 15 as follows: "The brief must be accompanied by a certification of compliance with the word limits of this paragraph."
The Committee questioned how the certification would be prepared. Discussion indicated that the certification could be attached like an affidavit of service or the certification could be included within the brief. Committee members questioned why an attorney's signature cannot constitute a certification that there has been compliance with the rule. Other Committee members said that a different mechanism would then be required for non-lawyers. Approximately 20 percent of the Supreme Court's filings are pro se filings. The Committee noted that the rule only requires certification; not verification. The certification requirement will not be difficult.
If a brief does not contain a certification, the Clerk of the Supreme Court will be alerted that there may not be compliance with the word count. The Committee decided not to impose different certification requirements for attorneys and non-attorneys. The Committee instructed that a comment should be placed in the explanatory note providing that a party may rely upon the word count of the word processing system when preparing the certificate of compliance with the word limits.
The Committee reviewed the remainder of Rule 32 from lines 23 to 62. Mr. Kapsner MOVED to delete lines 26 through the first word on line 31. The language is outdated. It is addressing typed appendices. Mr. Hoffman seconded. Motion CARRIED.
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Judge Hunke MOVED to adopt proposed Rule 32 with the changes discussed. Mr. Odegard seconded. Motion CARRIED.
Judge Hunke MOVED to adopt the proposed explanatory note to Rule 32, but with the deletion of proposed lines 79 through 85. Staff was instructed to put a provision in the explanatory note providing that a party may rely upon the word count of the word processing system when certifying compliance with the word limits of the rule. Professor Kraft seconded. Motion CARRIED.
RULE 30, N.D.R.CIV.P., EXPLANATORY NOTE (PAGES 69-71 OF THE AGENDA MATERIAL).
Staff explained that the explanatory note to Rule 30, N.D.R.Civ.P., is outdated. The explanatory note compares North Dakota's rule to the 1980 version of the federal rule. The federal rule was amended in 1993. Mr. Kapsner MOVED to adopt the explanatory note as proposed. Professor Kraft seconded. Motion CARRIED.
RULE 8.4, N.D.R.O.C. - SUMMONS IN ACTION FOR DIVORCE OR SEPARATION (PAGES 119-120 OF THE AGENDA MATERIAL).
Staff explained that the purpose of the proposal is to protect the parties and the marital estate and to decrease the need for interim orders. The proposal makes many of the features of interim orders automatic by including restraining provisions in a summons.
Committee members stated that the phrase "from bed and board" is confusing and unnecessary. Judge Hunke MOVED to eliminate the phrase "from bed and board" on lines 2 and 5. Professor Kraft seconded. Motion CARRIED.
Committee members questioned how a summons could apply to both parties when only the defendant receives the summons. Other Committee members noted that subdivision (b) provides that the restraining provisions are applicable to both parties.
The Committee reviewed Section 27-10-01.1, N.D.C.C., which was amended during the 1995 legislative session. The statute defines contempt of court as "[i]ntentional behavior in derogation of any provisions of a summons issued pursuant to rule 8.4 . . . ." Committee members questioned whether the action can be intentional, if the client is not aware of the provisions in the summons served by his or her attorney. Other Committee members argued that plaintiffs are bound by the conduct of their attorneys. Ignorance of the law is no excuse. Plaintiffs are bound by provisions in rules regardless whether they are aware of the rule.
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Committee members expressed concern about people being held in contempt for violation of a summons that is served by a pro se plaintiff. The Committee noted that in the federal system, the summons is signed by the clerk and bears the seal of the court.
Proposed Rule 8.4 is modeled after Section 518.091, M.S.A., which authorizes sanctions for a violation of a summons. The proposed rule has more restraining provisions than are contained in Minnesota's statute.
Committee members expressed concern about a summons being used to restrain the action of another person without anything being filed in court. Other Committee members commented that if the other party wants court intervention or to impose contempt sanctions, the action will have to be filed.
Committee members questioned whether service of a summons is equivalent to a temporary custody order. Under Section 14-14-22.1, N.D.C.C., it is a class C felony to remove children from the state in violation of a temporary custody order.
The Committee noted that a summons is not the same as an order. There has not been an adjudication. The statute requires a custody decree or order. The Committee did not want felony prosecutions initiated against people leaving the state in violation of a summons. The Committee did not think a state's attorney would initiate a felony prosecution against someone leaving the state in violation of a summons. Contempt is the remedy.
Concern was expressed that the proposed summons would cloak someone with the power of the court without the knowledge of the court. Others countered that putting the provisions in a restraining order avoids the necessity of requiring people to obtain an ex parte order from the court.
The Committee noted that the proposal is analogous to the procedure that previously existed before Rule 45, N.D.R.Civ.P., was amended. Rule 45 provided that a failure to obey a subpoena issued by an attorney before the action was filed could subject the person being subpoenaed to a contempt of court charge.
It was suggested that an action should be filed before a summons is issued. Amended Rule 45 requires that an action be filed before a subpoena may be issued by an attorney.
Committee members argued that divorce actions should not be required to be filed. Public policy is to discourage divorce. In addition, people want privacy to commence an action without the publicity created by filing. In any event, a contempt sanction will not be imposed unless the action is filed
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and there is a hearing. Committee members argued that to require filing would not accomplish anything. Committee members argued that pro se litigants should have the power to conduct litigation if they follow the rules of procedure.
Committee members argued that proposed Rule 8.4 contains substantive law by providing restraining provisions. The provisions are made applicable to the parties without a judge involved in an adjudication. A statute is needed providing for restraining provisions upon service of a summons. Other Committee members argued that the Legislature has acted by providing that violation of these provisions constitutes contempt of court. The Legislature was aware of the restraining provisions when amending the statute to provide that a violation of a summons constitutes contempt of court.
Committee members noted that a summons is issued under the authority of the court because it is a command from the State of North Dakota. The command is not from an attorney. The restraining provisions would be effective by operation of law even though lawyers serve the summons. Committee members questioned whether a non-officer of the court should have authority to commence an action. A summons should only be issued by the court or an officer of the court.
Committee members questioned whether at a contempt hearing, the court's review would be limited to whether the violation is intentional, or whether the court can review the merits of the restraints imposed by the summons. For instance, can the court determine whether a spouse was justified in leaving with the children because she was afraid for their safety. The Committee did not think imposition of contempt sanctions should be mandatory for violation of a summons.
Committee members argued that the proposed rule simply structures the procedure and maintains the status quo. It is within the court's power to manage cases. When parties seek a divorce they subject themselves to judicial action. There is so much jockeying the first couple weeks when the parties are divorcing that there needs to be immediate ground rules. The proposal will prevent ex parte races to the court. Further, the court already has the authority to do all the things proposed in the summons, but normally it is done through an order.
Committee members suggested that orders containing restraining provisions should automatically issue in every case. Committee members suggested having a standing order provide for the restraining provisions in every case that is filed. Filing would kick in the standing order. Other members argued that people should not be required to file in order to get protection. People need a chance to work out their marital difficulties.
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Committee members questioned how a standing order would be issued. Others commented that a rule would need to provide that each presiding judge issue a standing order for their district. Other Committee members questioned the difference between a standing order and a statewide rule of court. Others commented that at least with a standing order, the restraining provisions would be provided by a judicial order. Other members commented that uniformity is needed and that standing orders would not provide for a uniform practice. A statewide standing order is really the same as a rule.
Judge Hunke MOVED to adopt Rule 8.4 with the changes made by the Committee. Ms. Schmitz seconded.
The Committee instructed staff to borrow language from Rule 45(a)(2), N.D.R.Civ.P., to provide as follows: "A summons in a divorce or separation action must be issued by the clerk under the seal of the court, or by an attorney for a party to the action and . . . ."
On lines 28 through 29, the Committee instructed that the provision be amended to provide: "If either party violates any of these provisions, that party may be subject to contempt of court."
On line 25 the Committee instructed that a period be placed after the word "periods" and the phrase "such as vacations" be eliminated.
On lines 14 through 17 the Committee instructed that the provision provide as follows: "If a party disposes of, sells, encumbers, or otherwise dissipates assets during the interim period, that party shall provide to the other party an accounting within 30 days."
The Committee voted on Judge Hunke's motion to adopt proposed Rule 8.4 with the changes instructed by the Committee. The motion CARRIED.
The Committee noted that if this rule is adopted, the summons form in the Appendix of Forms for the North Dakota Rules of Civil Procedure will be inaccurate.
Committee members questioned what the penalty would be if a party did not include the restraining provisions in a summons as required by 8.4. Would that mean that they cannot get a divorce? The Committee considered making the restraining provisions optional. Others stated that then the plaintiff will omit the restraining provisions when the plaintiff wants to dissipate assets. Others comment that if the plaintiff wants to dissipate assets, the plaintiff will dissipate assets before service of a summons.
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The Committee instructed staff to draft a summons form for divorce cases for inclusion in the appendix to the North Dakota Rules of Court. The Committee noted that the explanatory note to Rule 8.4 should contain a reference to the proposed summons form, and that Rule 4 and the summons form in the Rules of Civil Procedure, should also have a cross-reference to Rule 8.4.
RULE 56, N.D.R.CIV.P. - SUMMARY JUDGMENT (PAGES 245-247 OF THE AGENDA MATERIAL).
Staff explained that Rule 56(c) conflicts with Rule 6(d), N.D.R.Civ.P., by providing that a motion for summary judgment must be served at least 10 days before the hearing instead of 14 days. The Committee discussed whether more than 14 days should be allowed for responding to motions for summary judgment. The Committee noted that more than 14 days is not allowed for other types of dispositive motions. The parties can ask for an extension of time if needed.
On lines 6 and 7, the Committee agreed to the deletion of the sentence following: "The adverse party prior to the day of hearing may serve opposing affidavits." Rule 3.2 provides the time periods within which the responding party must serve its supporting papers.
Mr. Lamb MOVED to adopt the proposal with the deletion agreed to by the Committee. Mr. Kapsner seconded. Motion CARRIED.
Committee members questioned whether the word "heard" on line 6 means that there must be oral argument. Others commented that the word "heard" includes motions that are heard on briefs. Ms. Schmitz MOVED to adopt the proposed explanatory note with the exception of proposed lines 28 through 33. Mr. Lamb seconded. Motion CARRIED.
The meeting adjourned at approximately 12 noon.
Gerhard Raedeke