Joint Procedure Committee Meeting
Scheduled on Thursday, June 2, 1977 @ 2:09 PM
MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
Joint Procedure Committee
June 2-3, 1977
The meeting was called to order at 1:00 p.m., June 2, 1977, by Justice Paul M. Sand, Chairman.
ATTENDANCE
Members Present:
Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. Larry Hatch
Mr. Calvin N. Rolfson
Mr. LeRoy A. Loder
Mr. James L. Lamb
Mr. David L. Peterson
Mr. Kent Higgins
Mr. Larry Kraft
Hon. Robert Vogel
Hon. Paul M. Sand
Members Absent:
Hon. James H. O'Keefe
Hon. Kirk Smith
Hon. R. C. Heinley
Hon. Halvor L. Halvorson
Hon. William S. Murray
Mr. Harry Pearce
Mr. Ronald G. Splitt
Mr. Timothy Q. Davies
Staff Present:
Joel W. Gilbertson
Eveleen Klaudt
Justice Sand wished to develop a consensus of the committee whether or not the Court has authority to supersede statutes that relate to appellate procedure.
A general discussion followed. It was decided that unless the subject matter of the statute is jurisdictional, the Court has the right to promulgate rules and supersede statutes.
Section 28-27-04, NDCC
Mr. Higgins MOVED that § 28-27-04 be shown as considered in our table of statutes in regard to Rule 4, NDRAppP. Mr. Kraft seconded the motion. Motion CARRIED 6-4.
Mr. Peterson MOVED that Rule 4, NDRAppP, be amended to provide that the appeal be within a 90-day period so that the Rule conform to § 28-27-04 in civil matters. Mr. Lamb seconded the motion. Motion CARRIED.
-2-
Mr. Higgins MOVED to amend Rule 4, NDRAppP, to conform with the original statute for the statutory time to appeal in criminal cases. Mr. Kraft seconded the motion. Motion LOST.
Judge Burdick MOVED that we recommend the enactment of a statute that would comport with the time for appeal provisions of Rule 4, NDRAppP, as it presently exists in civil matters. Mr. Rolfson seconded the motion.
Mr. Higgins MOVED that the Legislature be asked to amend the present statutory pronouncement on appeals and to specifically designate to the Supreme Court the time limit. Motion LOST for lack of a second.
The question was on the motion of Judge Burdick. Motion CARRIED.
APPROVAL OF MINUTES
Judge Burdick MOVED that all previously submitted Minutes which have not been approved, be approved. Justice Vogel seconded the motion. Motion CARRIED.
Mr. Higgins MOVED that the Code Reviser be requested to make a crossreference from § 29-28-08, NDCC, to Rule 4(b), NDRAppP. Mr. Kraft seconded the motion. Motion CARRIED.
RULE 46, NDRAppP
Judge Burdick MOVED that Rule 46, NDRAppP, be approved. Mr. Rolfson seconded the motion.
Mr. Peterson MOVED to amend Rule 46(b), NDRAppP, by adding the following sentence: "Any applicant failing the examination shall have the right to appeal to the supreme court." Mr. Higgins seconded the motion.
Mr. Lamb MOVED a substitute motion that consideration of this Rule be tabled to the next meeting, and that in the interim Mr. Peterson draft an appeal method for consideration at the next meeting. Judge Glaser seconded the motion. The substitute motion CARRIED.
RULE 10, NDRAppP
Mr. Lamb MOVED to adopt Rule 10, as proposed. Mr. Higgins seconded the motion.
Judge Burdick MOVED to amend Rule 10 on line 2, after the word "transcript," add "(3 copies)"; in line 9, after the word "transcript," add "(5 or more copies)". Mr. Rolfson seconded the motion. Motion CARRIED.
-3-
Mr. Lamb MOVED to amend Rule 10 on line 37: Delete "60" and insert "30"; line 38, delete "60" and insert "30 days unless extended by the court." Mr. Peterson seconded the motion. Motion LOST.
Judge Burdick MOVED that lines 38 through 53 be revised to provide that the period commences to run on the date of receipt and acceptance of the last order for a transcript or partial transcript or on the date of an order of the court requiring the appellant to order additional parts designated by the appellee. Mr. Lamb seconded the motion. Motion CARRIED.
Mr. Lamb MOVED to add the words "three copies of the transcript" after the word "file", and add the words "shall file with" after the word "and" in line 55. Mr. Higgins seconded the motion. The question was not called.
Judge Burdick MOVED to adjourn to 9:00 a.m., June 3, 1977. Mr. Higgins seconded the motion. Motion CARRIED.
The meeting was called to order at 9:00 a.m., June 3, 1977, by Justice Paul M. Sand, Chairman.
ATTENDANCE
Members Present:
Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Mr. Calvin N. Rolfson
Mr. LeRoy A. Loder
Mr. James L. Lamb
Mr. David L. Peterson
Mr. Kent Higgins
Mr. Larry Kraft
Hon. Robert Vogel
Hon. Paul M. Sand
RULE 10, NDRAppP
Judge Burdick commented that in view of the conference with the Clerk of the Supreme Court regarding Rule 10, NDRAppP, we should restructure the entire Rule 10.
Mr. Peterson MOVED that the Staff Attorney should prepare amendments to Rules 10 and 11, NDRAppP, to indicate that the record be filed with the Supreme Court ten days after receipt of the transcript by the clerk of court. Mr. Higgins seconded the motion. Motion CARRIED.
-4-
Mr. Lamb MOVED to amend Rule 10, lines 54 through 57, to read as follows: "Upon completion of the transcript the reporter shall file three copies with the clerk of the trial court and shall serve the other ordered copies upon the parties designated in the order for transcript." Mr. Peterson seconded the motion. Motion CARRIED.
Judge Burdick wished to be recorded as having voted "Nay." Judge Glaser also voted "Nay."
The discussion of Rule 10 was concluded by directing that the Staff Attorney study and prepare amended Rules 10 and 11, NDRAppP, for consideration at the next meeting.
RULE 1, NDRAppP
Judge Burdick MOVED to adopt the proposed amendment to Rule 1, NDRAppP, with a style change on line 20 to change "the" to "an", and change "responding" to "respondent". Mr. Rolfson seconded the motion. Motion CARRIED.
RULE 1, NDRAppP
SCOPE OF RULES
(a) Scope of Rules.
These rules govern procedure in appeals to the supreme court of North Dakota from the North Dakota district courts and the county courts of increased jurisdiction, and in applications for writs or other relief which the supreme court or a judge thereof is competent to give.
(b) Rules Not to Affect Jurisdiction.
These rules shall not be construed to extend or limit the jurisdiction of the supreme court as established by law.
(c) Trial Court.
The term "trial court" under these rules shall include the district court and the county court of increased jurisdiction. The term "clerk of the trial court" under these rules shall include the clerk of the district court and the clerk of the county court of increased jurisdiction.
(d) Parties.
Subject to the provisions of Rule 29(h), the party perfecting an appeal shall be known as the appellant, and the respondent party shall be known as the appellee.
-5-
Section 28-27-03, NDCC
Judge Burdick MOVED that § 28-27-03, NDCC, be recommended for supersession. Mr. Rolfson seconded the motion.
Mr. Higgins MOVED a substitute motion to amend to show § 28-27-03 as considered, not superseded. Motion LOST for lack of a second.
The question was on the motion of Judge Burdick that § 28-27-03 be recommended for supersession. Motion CARRIED. Mr. Higgins voted "nay."
RULE 59(d), NDRCivP
Judge Burdick MOVED to amend the proposed amendment to Rule 59(d) by substituting for the language in lines 13 through 15 the following language: "Either party may procure a complete or partial transcript of the proceedings for use upon the hearing of the motion." Justice Vogel seconded the motion. Motion CARRIED.
Mr. Loder MOVED to adopt Rule 59(d), NDRCivP, as amended. Mr. Lamb seconded the motion. Motion CARRIED.
(d) Upon What Motion for New Trial Made. A motion for new trial may be made upon the files, exhibits, and minutes of the court. Pertinent facts that are not a part of the minutes may be shown by affidavit. Either party may procure a complete or partial transcript of the proceedings for use upon the hearing of the motion.
Section 28-18-06, NDCC
Mr. Higgins MOVED that § 28-18-06, NDCC, be superseded as to motions for new trial by Rule 50(d), NDRCivP. Mr. Lamb seconded the motion.
Mr. Lamb MOVED a substitute motion to direct the Staff Attorney to prepare amendments to Rule 50(b), NDRCivP, and to table further action on this until the next meeting. Judge Burdick seconded the motion. The substitute motion CARRIED.
Rule 33, NDRCrimP
Judge Burdick MOVED to incorporate the same amendments in Rule 33 as in Rule 59, NDRCivP. Mr. Higgins seconded the motion. Motion CARRIED.
Judge Burdick moved to amend the proposed amendment to Rule 33(c) by substituting for the language in lines 26 through 28 the following language: "Either party may procure a complete or partial transcript of the proceedings for use upon the hearing
-6-
of the motion."; to amend Rule 33(d)(2) by substituting for the language in lines 40 through 44 the following language: "If affidavits are presented to the court in support of or in opposition to a motion for new trial and affiants are residents of this State, the court may compel their personal attendance before it and they may be examined under oath, touching the matters set forth in their affidavits."; and to adopt the proposed amendment as amended. Mr. Higgins seconded the motion. Motion CARRIED.
RULE 33, NDRCrimP
NEW TRIAL
Rule 33. New Trial.
(a) Grounds for Motion.
The court on motion of a defendant may grant a new trial to him if required in the interests of justice. The motion for a new trial shall be in writing and shall point out with particularity the defects and errors complained of.
(b) Motion Based on Newly Discovered Evidence or Jury Misconduct.
A motion based upon newly discovered evidence or jury misconduct shall be supported by affidavits. A motion for a new trial based on the ground of newly discovered evidence must be made within 30 days after discovery of the facts upon which it is made and within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case.
(c) Motion Based on Other Grounds.
A motion for new trial on any other grounds shall be made on the files, exhibits and minutes of the court. Pertinent facts that are not a part of the minutes may be shown by affidavit except as otherwise provided in these Rules. Either party may procure a complete or partial transcript of the proceedings for use upon the hearing of the motion. The motion shall be made within 7 days after verdict or finding of guilt or within such further time as the court may fix during the 7-day period.
(d) Affidavits.
(1) If a motion for a new trial is based on affidavit, the affidavit shall be served with
-7-
the notice of motion. The opposing party shall have 7 days after the service in which to serve opposing affidavits, which period may be extended by the court upon an order extending the time for hearing under this Rule. The court may permit reply affidavits.
(2) If affidavits are presented to the court in support of or in opposition to a motion for new trial and affiants are residents of this State, the court may compel their personal attendance before it and they may be examined under oath, touching the matters set forth in their affidavits.
(e) Other Post-Conviction Remedies.
Nothing in this Rule shall be construed to affect the remedies provided by Chapter 29-32, NDCC.
Judge Burdick also mentioned that the commentary to Rule 33 should carry a reference to Chapter 31-03, NDCC.
RULE 38 - NDRCivP
Judge Burdick MOVED to adopt the following amendment to Rule 38: On line 3, "If trial by jury is demanded, the jury shall consist of six qualified jurors unless a jury of twelve is specifically demanded within the time required by these rules for demanding trial by jury." Mr. Rolfson seconded the motion. Motion CARRIED. Mr. Peterson wished to be recorded as voting "nay."
RULE 38
JURY TRIAL OF RIGHT
(c) Size of Jury. If trial by jury is demanded, the jury shall consist of six qualified jurors unless a jury of twelve is specifically demanded within the time required by these rules for demanding trial by jury.
NEXT MEETING
Mr. Higgins MOVED that the next meeting of this Committee be at one o'clock p.m. on September 15 and run through the full day of September 16, 1977. Mr. Rolfson seconded the motion. Motion CARRIED.
Members Present After Recess
Hon. Eugene A. Burdick
Mr. LeRoy A. Loder
Mr. James L. Lamb
Mr. Kent Higgins
Mr. Larry Kraft
Hon. Robert Vogel
Hon. Paul M. Sand
-8-
RULE 48 - NDRCivP
Mr. Higgins MOVED to amend Rule 48(b), NDRCivP, to read as follows: "Jury of Six. In all civil actions in which a jury is impaneled, the jury shall consist of six qualified jurors unless any party entitled to do so makes a written demand for a jury of twelve in accordance with Rule 38", and when so amended that Rule 48 be adopted. Judge Burdick seconded the motion. Motion CARRIED.
RULE 48
JURIES OF LESS THAN TWELVE -
MAJORITY VERDICT
(b) Jury of six. In all civil actions in which a jury is impaneled, the jury shall consist of six qualified jurors unless any party entitled to do so makes a written demand for a jury of twelve in accordance with Rule 38.
RULE 38.1 - NDRCivP
Judge Burdick MOVED to adopt proposed Rule 38.1, with the following amendments:
(1) Change "72 hours" in line 4 to "two days";
(2) Add "trial by jury" on line 8 after "demanded";
(3) Delete "for trial by jury" on line 8 after "his demand";
(4) Add "at least two days before the scheduled trial date" on line 8 after "withdrawn his demand";
(5) Add "previously" after "and not" on line 12;
(6) Add "or mail by certified mail to" after "file with" on line 13;
(7) Substitute "two days" for "72 hours" on line 14;
(8) Delete "the hour" on line 14;
(9) Add "and received by" after "by him to" on line 16;
(10) Add "or" after "assessment;" on line 37; and
(11) Delete lines 40 and 41.
Mr. Kraft seconded the motion.
Mr. Lamb MOVED a substitute motion to table the matter until after the Bar Association meeting and take the matter up with the members. Motion LOST for lack of a second.
The question was on the motion to adopt Rule 38.1, as amended which motion CARRIED.
-9-
RULE 38.1
ASSESSMENT OF JURY EXPENSE
(a) If a civil action involving a monetary claim is scheduled for trial by a jury on a day certain and the claim is settled by the parties during the trial or within two days before the trial is scheduled to commence and another action triable by jury cannot be substituted conveniently without delay, the court, as may be appropriate, shall assess to any party who has demanded trial by jury and not withdrawn his demand at least two days before the scheduled trial date and apportion between or among demanding parties if there is more than one, all or part of the per diem and mileage expense of the jurors reporting for jury service, according to the following rules:
(1) Any party who has demanded and not previously withdrawn his demand for trial by jury shall file with or mail by certified mail to the clerk at least two days before the trial is scheduled to commence a sealed statement indicating the amount of the last settlement offer communicated to the adverse party.
(2) If only one party has demanded and not withdrawn his demand for trial by jury and the settlement is less favorable to him than his settlement offer, he may be assessed all of the jury expense.
(3) If two or more parties have demanded and not withdrawn their demands for trial by jury and the settlement is less favorable to each than their respective settlement offers, each may be assessed the jury expense in the proportion that the difference between his settlement offer and the settlement bears to the difference between the settlement offers.
(4) If the settlement is at least as favorable to a party as his settlement offer, he shall not be assessed.
(5) If a settlement offer is not filed as required, the court may make any assessment justice requires.
(b) In exercising its discretion under this rule, the court shall consider any extenuating circumstances, such as the following:
-10-
(1) a significant change in circumstances occurring since the refusal of the settlement offer of a party subject to assessment; or
(2) a party subject to assessment would suffer undue financial hardship were the assessment to be made.
RULE 38 (d) - NDRCivP
Judge Burdick MOVED to adopt the proposed amendments to Rule 38(d). Mr. Higgins seconded the motion. Motion CARRIED.
Judge Burdick MOVED to reconsider the action by which Rule 38(d) was amended. Mr. Higgins seconded the motion. Motion CARRIED.
Judge Burdick MOVED to amend Rule 38(d), line 10, after the word "party" add "by filing a notice of withdrawal with the clerk", and when so amended that the Rule be adopted. Mr. Kraft seconded the motion. Motion CARRIED.
[As the result of previous action taken, subdivision (d) will become subdivision (e)]
RULE 38
JURY TRIAL OF RIGHT
(e) Waiver. The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by him of trial by jury. A waiver of trial by jury is not revoked by an amendment of a pleading asserting only a claim or defense arising out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. A demand for a trial by jury made by a party as herein provided may be withdrawn without the consent of any other party by filing a notice of withdrawal with the clerk.
RULE 23 - NDRCrimP
Judge Burdick MOVED to amend Rule 23, line 7, by changing "when" to "in which"; line 12, "at the arraignment or not later than the time set for making pretrial motions" and strike the words "within ten days thereafter."; and when so amended to adopt Rule 23. Mr. Higgins seconded the motion. No action was taken on the motion.
Judge Burdick MOVED to amend Rule 23(b) to read: "In felony cases a jury shall consist of twelve qualified jurors. In misdemeanor cases a jury shall consist of six qualified jurors unless a party demands a jury of twelve. The demand must be made at the arraignment or filed with the clerk not later than the time set for pretrial motions." Mr. Higgins seconded the motion. Motion CARRIED.
-11-
Judge Burdick MOVED to reconsider the action by which the amendments to Rule 23 were adopted. Mr. Higgins seconded the motion. Motion CARRIED.
Judge Burdick MOVED to further amend Rule 23, lines 15 and 19, by changing "less" to "fewer." Mr. Higgins seconded the motion. Motion CARRIED.
Mr. Higgins MOVED to adopt Rule 23 as amended. Mr. Loder seconded the motion. Motion CARRIED.
RULE 23, NDRCrimP
TRIAL BY JURY OR BY COURT
(a)Trial by Jury.
Trial shall be by jury in all cases as provided by law unless the defendant waives a jury trial in writing or in open court with the approval of the court and consent of the prosecuting attorney.
(b) Number of Jurors.
In felony cases a jury shall consist of twelve qualified jurors. In misdemeanor cases a jury shall consist of six qualified jurors unless a party demands a jury of twelve. The demand must be made at the arraignment or filed with the clerk not later than the time set for making pretrial motions.
(c) Jury of Fewer Than Twelve by Stipulation.
At any time before verdict the parties may stipulate in writing or in open court, with the approval of the court, that the jury shall consist of fewer than twelve.
(d) Trial Without a Jury.
In a case tried without a jury, the court shall make a general finding of guilty or not guilty.
RULE 35 - NDRCrimP
Judge Burdick MOVED that his proposed draft of an amendment to Rule 35 be approved. Mr. Loder seconded the motion. Motion CARRIED.
RULE 35, NDRCrimP
CORRECTION OR REDUCTION OF SENTENCE
-12-
The sentencing court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. The sentencing court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by that court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court of the United States denying review of, or having the effect of upholding, a judgment of conviction. The court may also reduce a sentence upon revocation of probation as provided by law. Relief under this rule may be granted by the Court only after a hearing upon motion of a party or its own motion. If the sentencing court grants relief under this rule, it shall state its reasons therefor in writing.
CERTIFICATE OF READINESS RULE
Mr. Higgins MOVED that this rule be placed on the agenda for the next meeting. Justice Vogel seconded the motion. Motion CARRIED.
Judge Burdick MOVED to adjourn. Mr. Loder seconded the motion. Motion CARRIED.
_____________________________
Secretary