Joint Procedure Committee Meeting
Scheduled on Tuesday, February 20, 1973 @ 1:25 PM
MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
for the Adoption of Rules of Criminal Procedure
February 20-23, 1973
The meeting was called to order at 1:25 p.m. on Tuesday, February 20, 1973. The following members were present: Judge Erickstad, Roger Persinger, John Graham, Paul Sand, and Judge William S. Murray. Staff present: Charles Travis, John Jacobson, Lorna Bender.
MINUTES OF PREVIOUS MEETING
Mr. Persinger MOVED to correct the Minutes of December 1l-15, 1972, page 7, to read: "Upon indictment or information, where there has been an indication that a guilty plea will be entered, the probation officer then secures a written consent from the defendant to proceed with his presentence investigation." John Graham seconded the motion and it CARRIED.
Mr. Graham also pointed out two typographical errors: on page 3, ¶1, the last word should be "expenditures"; on page 7, second paragraph, line 2, the word "personal".
Judge Murray MOVED to dispense with reading of the Minutes and to accept the Minutes as corrected. Seconded by Mr. Persinger. No objection. The Minutes were approved.
ADMINISTRATIVE REMARKS
Mr. Travis noted that the staff had prepared some legislation to effect the intentions of the Committee. Also provided were all the bills affecting the work of the Criminal Rules Committee. Mr. Jacobson gave an analysis of the bills and their disposition in the legislature (see Attachment 1). Also provided was an analysis of the Criminal Code and the Rules (see Attachment 2). Bills discussed were House Bills 1266, 1493, 1425 and 1472 and Senate Bills 2290, 2291, 2033, 2045 and 2197.
Judge Ilvedson arrived at 9:45 a.m. and left for a meeting of judges in the Blue Room.
Following Mr. Jacobson's remarks, Mr. Travis pointed out the Table of Statutes prepared. He also discussed the proposed agenda and noted an appendix of forms is being drafted by Judge Burdick and the staff.
Judge Glaser was appointed Acting Chairman.
RULE 55
Rule 55, Records. [adopted December 10, 1970] Judge Murray, sponsor. Minor language change. No comparable ABA Standard.
Judge Murray read Rule 55 together with the Explanatory Note as follows.
Rule 55. Records. [adopted 12/10/70]
The clerk of each court governed by these rules or the magistrate where there is no clerk shall keep such records in criminal proceedings as are required by law or by rule or order of the supreme court.
Proposed Explanatory Note
Rule 55 is an adaptation of Rule 59 of the Uniform Rules of Criminal Procedure as adopted by the National Conference of Commissioners on Uniform State Laws (1952). The Rule places the responsibility of keeping the records of the court with the clerk, but recognizes that there are many of the lower courts which are without the assistance of a clerk -- in those cases the responsibility of keeping the records is upon the magistrate. The Rule deals with those records which must be kept as a matter of law as well as those records which may be required by the Supreme Court.
Judge Murray MOVED adoption of the Rule. Mr. Travis noted that the inserted language was included to make clear that the record keeping function is upon the magistrate where he has no clerk.
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Mr. Sand suggested that the phrase "proceedings as are" be changed to "proceedings as may be". Judge Murray objected. Paul Sand MOVED to delete "are" and substitute "may be". Mr. Graham seconded the motion and it CARRIED.
Judge Glaser noted that a provision had been included earlier in the Rules to provide that the magistrate would be responsible to handle the duties of clerk when there is none. Judge Erickstad MOVED to adopt Rule 55. Judge Murray seconded the motion. CARRIED without objection.
STATUTES AFFECTED
Considered:
11-17-01 no objection
27-07-28 no objection
27-07-36 no objection
Mr. Sand suggested the addition of Section 27-08-13 to "Statutes Affected" under Rule 55. There were no objections.
It was also agreed to add Section 27-07-39. Acting Chairman Glaser ruled that these statutes would be included so long as no objections voiced.
27-08-10 no objection
29-23-01 no objection
29-23-02 no objection
29-23-03 no objection
29-23-04 no objection
29-23-07 no objection
29-23-08 no objection
29-23-09 no objection
29-23-10 no objection
Judge Glaser said that he felt there was little applicability to Chapter 29-23. It was further noted that other statutes in the Chapter related to the Rule. Judge Erickstad MOVED to include Chapter 29-23 in Statutes Considered. Seconded by Paul Sand. Motion CARRIED without objection.
29-23-11 no objection
33-12-02 no objection
33-12-12 no objection
33-12-13 no objection
33-12-14 no objection
33-12-15 no objection
33-12-16 no objection
33-12-17 no objection
John Graham mentioned House Bill 1275, re record keeping in criminal cases.
Judge Murray MOVED to adopt Rule 55 as amended. Mr. Sand seconded the motion. It CARRIED without objection.
RULE 56
Rule 56, Courts and Clerks. [adopted December 10, 1970]
Judge Murray, sponsor. No change. No comparable ABA Standard.
Judge Murray read Rule 56 together with the Explanatory Note as follows.
Rule 56. Courts and Clerks. [adopted 12/10/70]
The courts governed by these rules shall be deemed always open for the purpose of filing any proper paper, of issuing and returning process and of making motions and orders. The clerk's office with the clerk or a deputy in attendance shall be open during business hours on all days except Saturdays, Sundays and legal holidays, unless otherwise prescribed by the court.
Proposed Explanatory Note
Rule 56 is an adaptation of Rule 60 of the Uniform Rules of Criminal Procedure drafted by the National Conference of Commissioners on Uniform State Laws (1952) and follows closely the provisions of Rule 56 of the Federal Rules of Criminal Procedure. The provisions of the Rule relating to courts being open are found in Sections 27-07-15, 29-01-11, 33-01-02, and 40-18-04, NDCC. The language of the Rule which provides that the "courts governed by these
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rules shall be deemed always open" means that they have the power to act at any time. [See 8A Moore's Federal Practice, Chapter 56, page 56-2 (Cipes, 2d Ed. 1972), citing 1948 Reviser's Notes to 28 U.S.C., §452.] Similar language may be found in Rule 77(a), NDRCivP, and Rule 45(a), NDRAppP.
The provision which requires the clerk's office to be open means that the office must be physically open. Similar provisions are found in Rule 77(a), NDRCivP and Rule 45(a), NDRAppP. At the time when the clerk's office is not actually open, papers may be filed with him or with the judge at home, although slipping the paper under the door of the clerk's office may be sufficient. [See Wright, Federal Practice and Procedure: Criminal, §891 (1969).]
Discussion was had concerning the language of ¶2 of the Explanatory Note, especially the second sentence. Judge Erickstad noted that the Rule has to do with the filing of papers rather than the ultimate power of the court. Mr. Sand read Rule 77, NDRCivP.
John Graham questioned whether the Committee was trying to tell an appointed official what to do, when it has already been established by statute. He said that there was no point to the second sentence other than to say when the clerk's office shall be open. Judge Glaser added that the county commissioners establish when the clerk's office shall be open.
Mr. Graham MOVED to delete the second sentence of Rule 56.Judge Murray seconded the motion; motion CARRIED.
Mr. Graham MOVED to strike the words "and Clerks" in the title of the Rule and to delete paragraph 2 of the Explanatory Note. Judge Murray seconded the motion and it CARRIED without objection.
STATUTES AFFECTED
Considered:
Chapter 1-03 John Graham MOVED to delete Chapter 1-03 from Consideration.
Mr. Sand seconded. CARRIED without objection.
27-01-03 Judge Glaser mentioned that Section 27-01-03 was inconsistent with the rule. Judge Erickstad MOVED to supersede Section 27-01-03, because by superseding the statute, the magistrates court would be given greater power so that all courts would be on a par. Mr. Graham seconded. The motion to supersede Section 27-01-03 as it relates to criminal procedure CARRIED.
27-05-07 Mr. Graham had a question about Section 27-05-07.
Mr. Sand read Section 27-07-15.
Judge Erickstad MOVED to delete Section 27-05-07 because of the reference to term time. Seconded by Paul Sand. It was noted that this statute is superseded for criminal process only. Motion CARRIED.
27-07-15 Mr. Sand MOVED to supersede Section 27-07-15 because of ambiguity. Seconded. CARRIED without objection.
Section 27-05-08.1 was discussed.
29-01-11 Mr. Graham MOVED to supersede Section 29-01-11 as unnecessary. Judge Murray seconded. Motion CARRIED.
33-01-02 no objection
40-18-04 Mr. Sand MOVED to supersede Section 40-18-04. Judge Erickstad seconded the motion. CARRIED without objection.
Judge Murray MOVED to delete the second sentence of ¶1 of the Explanatory Note (on lines 4 and 5). Judge Erickstad seconded. CARRIED without objection.
Judge Murray MOVED to adopt Rule 56 with Explanatory Notes and Statutes Affected. Judge Erickstad seconded the motion. The motion CARRIED.
John Graham left at 3:20; a recess was called; Judge Glaser also left the meeting.
Roger Persinger assumed the Chairmanship.
RULE 57
Judge Ilvedson read Rule 57 together with the Explanatory Note as follows.
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Rule 57, Practice When Procedure Not Specified. [adopted May 7, 1971] Judge Burdick, sponsor. No change. No comparable ABA Standard.
Rule 57. Practice When Procedure Not Specified. [adopted 5/7/71] In all cases not provided for by rule or statute, the governed court may regulate its practice in any lawful manner not inconsistent with these rules or any applicable statute.
Proposed Explanatory Note
Rule 57. Practice When Procedure Not Specified.
Rule 57 is adapted from the language of Rule 83 of the North Dakota Rules of Civil Procedure and gives latitude to each judge to establish procedure in his court which is not otherwise prescribed by Rule or statute. This Rule is not to be construed to detract in any manner from the authority of the Supreme Court under Chapter 27-02, NDCC.
Judge Ilvedson MOVED to adopt Rule 57. Judge Murray seconded the motion and it CARRIED.
The Explanatory Note was discussed with respect to the suitability of the word "prescribed". It was decided it was correct.
STATUTES AFFECTED
Considered:
27-02-05.1 no objection
27-02-08 no objection
27-02-09 no objection
27-02-10 no objection
27-02-11 no objection
27-02-12 no objection
27-02-13 no objection
27-02-14 no objection
27-02-15 no objection
Judge Ilvedson MOVED to adopt Rule 57 with the Explanatory Notes. Judge Murray seconded the motion and it CARRIED.
RULE 58
Rule 58, Appendix of Forms. [adopted May 7, 1971] Judge Burdick, sponsor. No change. No comparable A.B.A. Standard.
Rule 58 was read by Roger Persinger.
Rule 58. Appendix of Forms. [adopted 5/7/71] The forms contained in the Appendix of Forms are illustrative and not mandatory.
Proposed Explanatory Note
Rule 58 is adapted from Rule 58 of the Federal Rules of Criminal Procedure and is similar to Rule 84 of the Civil Rules. The forms are found in the appendix of forms. The practice of appending illustrative forms to serve as guides has been found useful in connection with many criminal codes. [Advisory Committee Note, 18 U.S.C.A., Rule 58.]
Mr. Sand MOVED to adopt Rule 58. Judge Murray seconded it and it CARRIED without objection.
STATUTES AFFECTED
Superseded:
29-01-08 Mr. Sand MOVED to delete Section 29-01-08 from the Superseded list. Judge Murray seconded the motion and the motion CARRIED.
29-05-07 no objection
29-05-29 no objection
It was decided that Section 29-05-31 should be listed. Mr. Sand suggested that it be superseded and that the Committee establish procedure. Reference was made to Senate Bill 2033. It was decided that Section 29-05-31 should be listed as a Statute Considered.
29-07-25 no objection
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29-08-18 no objection
29-10-36 Mr. Sand noted that Section 29-10-36 has been repealed and it was agreed to delete reference.
29-11-09 no objection
29-12-04 no objection
29-14-19 no objection
29-26-08 no objection
29-29-06 no objection
31-03-04 no objection
33-12-04 no objection
33-12-06 no objection
Mr. Sand MOVED to adopt Rule 58 as submitted, together with the Explanatory Note and statutes affected. Judge Murray seconded the motion and it CARRIED without objection.
RULE 59
Rule 59, Effective Date; Statutes Superseded. [adopted May 6, 1971] Judge Burdick, sponsor. No change. No comparable ABA Standard.
Mr. Persinger read Rule 59.
Rule 59. Effective Date; Statutes Superseded. [adopted 5/6/71]
(a) Effective Date.
These rules will take effect on _____________________.
They govern all criminal proceedings thereafter commenced and so far as just and practicable all proceedings then pending.
(b) Statutes Superseded.
Upon the taking effect of these rules, all statutes and parts of statutes in conflict herewith and the statutes listed in Tables A and B are superseded.
Judge Erickstad asked that the date "September 1, 1973" be inserted as the effective date for the Rules. Judge Murray added the date to his MOTION to adopt Rule 59. Judge Erickstad seconded. The motion CARRIED without objection.
STATUTES AFFECTED
Considered:
29-02-07 no objection
29-02-08 no objection
29-02-09 no objection
29-02-10 no objection
29-02-11 no objection
29-02-12 no objection
29-02-13 no objection
29-02-14 no objection
Judge Murray MOVED to adopt Rule 59, as amended with the date, together with the Explanatory Note and statutes affected. Mr. Sand seconded the motion and it CARRIED without objection.
RULE 60
Rule 60, Title. [adopted May 7, 1971] Judge Burdick, sponsor. No language change.
Roger Persinger read Rule 60 as follows.
Rule 60. Title. [adopted 5/7/71]
These rules shall be known as North Dakota Rules of Criminal Procedure and may be cited as N.D.R.Crim.P.
Judge Murray MOVED to adopt Rule 60. Mr. Sand seconded the motion and it CARRIED without objection.
RULE 37
Rule 37, Appeals [adopted July 10, 1969] was substantially revised by Paul Sand, sponsor, to conform to the newly adopted North Dakota Rules of Appellate Procedure. See ABA Standards Relating to Criminal Justice as follows: CRIMINAL APPEALS, §5.3; APPELLATE REVIEW OF SENTENCES, §§1.1, 2.1 and 3.2.
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Mr. Sand explained that the North Dakota Supreme Court had adopted Appellate Rules, so Rule 37 was rewritten to make it parallel to Appellate Rules. He then read Rule 37. (See Attachment 3 for proposed Rule)
Mr. Sand MOVED to correct the Explanatory Note, subdivision (b), by adding the words "such a motion" in lieu of "a motion for newly discovered evidence". Judge Ilvedson seconded the motion and it CARRIED without objection.
Judge Erickstad expressed his pleasure with the language in subdivision (b) referring to "mandatory and jurisdictional", but questioned how the exception to ease the mandatory requirement squares with statutory provisions. Paul Sand responded by noting that it is not the time within which the appeal may be taken, but rather whether an appeal may or may not statutorily be taken and if the legislature grants the right of appeal, the time within which it may be taken may be varied--and that is the intent of this Rule.
There was some discussion as to the meaning of the notes, and Mr. Sand explained that time can be varied by the rules, but whether or not an appeal may be taken is a statutory matter.
Mr. Sand called attention to subdivision (f) and proposed changing the words "is contrary to existing law" to "modifies existing practice". The reason given for the change was that the word "contrary" is objectionable.
Mr. Sand's MOTION to adopt Rule 37 was seconded by Judge Murray.
Judge Erickstad brought up the question of whether a city can bring an appeal under this when in subdivision (b) the reference is to an appeal by the State. He mentioned the case of City of Bismarck v. Materi, 145 N.W.2d 530 (1970).
There was a discussion of appeals by the state and city. Mr. Sand said found no specific right to appeal by cities. Judge Erickstad mentioned that the Supreme Court had ruled in Materi that the City of Bismarck had a right to appeal--he added that such situation should be provided for in the Rules.
Mr. Sand MOVED to amend the reference to state by use of the term "prosecution" in line 12 of subdivision (b) of the Rule. Seconded by Judge Murray. Motion CARRIED without objection.
Paul Sand also made reference in subdivision (b) of the Rule to the terms "verdict" and "decision" with judgment and sentence in the second sentence, noting that he had neglected those two terms in the first sentence. He MOVED to add the words "verdict, decision" to the first sentence.
The motion to change the word to "prosecution" CARRIED.
Chairman Persinger asked for a motion on Rule 37. Mr. Sand MOVED and Judge Murray seconded to adopt Rule 37 together with Explanatory Notes as amended. Motion CARRIED without objection.
Judge Ilvedson MOVED to recess until 9 a.m. Wednesday, February 21, 1973. Judge Murray seconded the motion and it CARRIED.
Wednesday, February 21
ATTENDANCE
Members present were Judge Erickstad, Judge Ilvedson, Judge Muggli, Judge Murray, Mr. Roger Persinger, Mr. Paul Sand, and Judge Glaser arrived at 10:30 a.m. Staff present: Travis, Jacobson, Fischer. Acting Chairman: Roger Persinger.
Call to order by Mr. Persinger at 9:10 a.m.
EXPLANATORY NOTE--Rule 37
Mr. Sand suggested amending ¶2 of the Explanatory Note, by changing the word "state" to "prosecution" in lines 5 and 8 because such change was made in the body of the Rule. He abandoned that proposal because he said that the language used suggests too strongly that it would require specific statutory authority--which is not available--and "a casual reading of the note would lead the reader to conclude that there are no appeals in matters before the municipal court." He suggested instead, to add the following sentence to the end of the second paragraph of the Explanatory Note: "Cities may also appeal. See City of Bismarck v. Materi, 177 N.W.2d 530 (1970)." Mr. Sand presented the preceding sentence as a MOTION noting that the reason for the motion was
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that neither Chapter 40-18 nor Chapter 33-12 contain language which would permit a city to appeal an adverse ruling on a constitutional question. The N.D. Supreme Court has permitted such an appeal. Judge Murray seconded.
Mr. Travis suggested limiting that sentence to "... appeal on questions of law." Mr. Sand suggested the language "... although not specifically provided by statute." There were further language proposals. Mr. Sand WITHDREW his motion to amend.
Judge Ilvedson MOVED to amend ¶ 2 of the Explanatory Note as follows; "It was held in City of Bismarck v. Materi that a city may appeal from a decision of a district court, holding an ordinance unconstitutional [177 N.W.2d 530 (1970)." Second by Judge Murray and the motion CARRIED without objection.
STATUTES AFFECTED
Considered:
27-07-02 no objection
Superseded:
27-08-21 Mr. Sand MOVED that section 27-08-21 be removed from the list of Superseded statutes and be placed in the Considered list.Motion seconded by Judge Muggli. CARRIED without objection.
28-27-06 Mr. Sand MOVED that Section 28-27-06 be removed from the list of statutes Superseded and be included in the statutes Considered. Judge Murray seconded. Motion CARRIED. It was felt that there was little relevance in listing this statute as considered except that there was some mention of cost included in the statute.
29-23-11 Judge Erickstad suggested that Section 29-23-11 be Considered. Judge Ilvedson noted it is Considered under Rule 33. Mr. Sand MOVED that Section 29-23-11 be removed from the list of statutes Superseded and be included in the list of Considered statutes. Judge Muggli seconded. Motion CARRIED unanimously.
29-28-02 Judge Erickstad felt this statute should be moved to the Considered list. Mr. Sand MOVED that Section 29-28-02 be removed from the Superseded statutes list and be placed in the Considered list. Second by Judge Ilvedson. Motion CARRIED unanimously.
29-28-04 no objection
Considered:
29-28-06 no objection Mr. Sand noted that this refers to who may appeal.
29-28-07 no objection Mr. Sand noted that this also refers to who may appeal.
Superseded:
29-28-08 no objection (pocket part) Mr. Sand noted that this is covered by the Rule.
29-28-09 no objection Mr. Sand noted that this is covered by the Rule.
29-28-11 no objection
29-28-20 Mr. Sand MOVED Section 29-28-20 (pocket part) be removed from the Superseded list and be included in the considered list. Judge Muggli seconded. Motion CARRIED unanimously.
Considered:
29-28-21 no objection
33-12-34 no objection
Superseded:
33-12-35 no objection
33-12-40 no objection
Considered:
33-12-41 no objection
40-18-19 no objection
Judge Muggli MOVED to adopt the Statutes Affected. Mr. Sand seconded. Motion CARRIED unanimously.
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Cross References:
Mr. Sand MOVED to include in the Cross References, reference to Rule 4 of the North Dakota Rules of Appellate Procedure. Mr. Sand suggested that the reference to Rule 3 of the N.D. Rules of Appellate Procedure be listed as "Rule 3, NDRAppP", without the title. Mr. Travis suggested that for continuity the title of the Rule should be included.
Judge Ilvedson MOVED to amend the Cross Reference to read "Rules 3 and 4, NDRAppP (pertaining to appeals to the Supreme Court)". Judge Muggli seconded; motion CARRIED unanimously.
It was noted that the cite to the case Lemke v. United States (paragraph 4 of the Explanatory Note) did not include the year.
Mr. Sand MOVED to adopt Rule 37 together with the Explanatory Note as amended. Second by Judge Muggli. Motion CARRIED without objection.
RULE 47
Rule 47, Motions. [adopted September 17, 1970] Paul Sand, sponsor. No change. No comparable A.B.A. Standard.
Mr. Sand read Rule 47 and the Explanatory Note. Judge Muggli suggested the last paragraph (¶3 of the Note) should be inserted as a Cross Reference line. (See Attachment 4 for proposed Rule)
A question was raised as to the disposition to be made of the Explanatory Note. It was explained that inclusion of the Explanatory Notes in the final publication of the Rules is a question of cost of publication. Judge Ilvedson expressed pleasure and approval of the explanatory note and urged its inclusion in the final copy.
Mr. Sand MOVED to readopt Rule 47 as read. Seconded by Judge Murray. Motion CARRIED unanimously.
Judge Muggli MOVED to have the last sentence of the Explanatory Note inserted the Cross Reference, preceded by the word "note".Second by Judge Ilvedson. CARRIED.
STATUTES AFFECTED
Considered:
29-24-05 Since Chapter 29-24 is superseded by Rule 33, this section should be removed from the list. No action required and the statute is deleted from the list.
29-25-04 Also superseded by Rule 33 and should be deleted.
Since no statutes are now affected, the word "None" should be inserted.
Mr. Sand MOVED to adopt Rule 47 and the Explanatory Note as amended. Second by Judge Muggli. CARRIED unanimously.
The RECORD notes the arrival of Judge Glaser.
RULE 48
Rule 48, Dismissal. [adopted September 17, 1970] John Shaft, sponsor. No language change. See A.B.A. Standard Relating to Criminal Justice as follows: SPEEDY TRIAL, §4.1.
Judge Muggli assumed the Chair as Acting Chairman. It was noted that Mr. Shaft will not be present for meeting. (See Attachment 5 for proposed Rule)
Judge Ilvedson read Rule 48 and the Explanatory Note. Judge Ilvedson MOVED to readopt the Rule. Judge Murray seconded. Paul Sand noted that the practice of requiring the prosecuting attorney to submit in writing his reasons for requesting the dismissal (see 29-18-04) is not the practice now. Practice varies. Judge Erickstad said the proposed rule is good. It requires such request to be in writing. The motion CARRIED unanimously.
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Explanatory Note--Rule 48
Judge Ilvedson MOVED to adopt the Explanatory Note to Rule 48 as written. Judge Murray seconded. Judge Muggli questioned the length of the Explanatory Note. Judge Erickstad said that the Note is a valuable explanation of the Rule.
Mr. Sand questioned the sentence in ¶2 which reads, "If an action . . . would have attached." Its source and correctness were questioned. The issue was to the word "action" -- is commenced in determining when jeopardy attaches. Judge Erickstad suggested "Under subdivision (a) with prejudice" would be correct if read in the proper context. It was felt that it is inaccurate in that a case cannot be dismissed without the consent of the defendant. Judge Erickstad referred to language in Wright, "under Rule 48(a) is withoutprejudice ... on the same charge." Judge Ilvedson stated it was his belief that jeopardy never attaches until trial has started. That is correct. Judge Ilvedson and Mr. Persinger felt that sentence should be stricken from the Note.
Judge Ilvedson MOVED to strike the sentence "If an action is dismissed under subdivision (a) without the defendant's prior consent, it would bar any further proceedings against him on that charge since jeopardy would have attached." and the first word, "However", of the following sentence. Judge Erickstad asked for authority for the preceding statement, "... once an action has commenced a defendant has a right to insist on a disposition on the merits." It was noted the source is page 303 of Wright. Judge Ilvedson WITHDREW his motion to amend. Judge Muggli suggested that a reconsideration of the Rule would be in order.
Reconsideration of Rule
Mr. Sand pointed out Section 29-04-05, when an action is commenced. Judge Ilvedson MOVED to strike the last sentence of 48(a) and insert in lieu thereof "Such dismissal may not be filed during the trial without the consent of the defendant." The reason for the change, it was noted, is to permit dismissal anytime before trial without placing the defendant in jeopardy. Acting Chairman Muggli had question on the word "filed" and suggested instead "granted". Mr. Persinger suggested "ordered" in lieu of "filed". Judge Ilvedson WITHDREW his motion.
The last sentence of 48(a) remains, with the phrase "during the trial" inserted after "ordered". Mr. Sand seconded; motion CARRIED unanimously.
In reference to the first sentence, Mr. Sand asked when a case is "pending". Judge Erickstad suggested deleting the word "Such" at the beginning of the last sentence of subdivision (a). Judge Ilvedson said that he was of the opinion that the word "such" is alright but would have no objection to deleting the word "such". Acting Chairman Muggli agreed. Judge Ilvedson MOVED to strike the word "Such" at the beginning of the last sentence of (a). Mr. Sand seconded. Motion CARRIED without objection.
Explanatory Note
Judge Ilvedson MOVED to amend ¶2 by deleting lines 1-9 and line 10 to "A dismissal..." because it merely repeats what is said in the Rule and is not entirely accurate in light of the Committee's amendments to the Rule. Mr. Sand seconded. Judge Glaser expressed the opinion that the next sentence should also be stricken because it is also inaccurate in light of the amendment and is not a correct statement of the law. The MOTION was AMENDED to include striking all language of ¶2 from "If an action is..." through "The purpose...". Mr. Persinger gave language of Moore's, "The purpose ... and recharging without placing in jeopardy".
Judge Glaser MOVED to further amend that paragraph of the Note to read as follows; "Subdivision (a), requiring the court's consent to dismissal, is designed to prevent harassment of a defendant by charging, dismissing and recharging without placing a defendant in jeopardy." Judge Erickstad and Mr. Sand seconded the motion. Motion CARRIED without objection.
Judge Erickstad MOVED to adopt the Explanatory Note of subdivision (b). Motion was seconded and CARRIED unanimously.
STATUTES AFFECTED
Superseded:
29-18-01 Judge Ilvedson spoke in favor of allowing this statute to remain superseded. no objection
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29-18-02 no objection
29-18-03 no objection
29-18-04 no objection It was noted that this statute is also superseded under Rule 46.
29-18-05 and -06
Judge Ilvedson MOVED to list as Superseded "Chapter 29-18". Mr. Sand and Mr. Persinger seconded. CARRIED.
Considered:
29-04-05 no objection
Judge Ilvedson MOVED to approve Rule 48 and the Explanatory Note as amended. Motion CARRIED without objection.
Committee RECESSED for lunch; scheduled to RECONVENE at 1:30 p.m. Wednesday p.m. attendance: Judge Erickstad, Judge Glaser, Judge Ilvedson, Judge Muggli, Mr. Persinger, Mr. Sand. Staff present: Travis, Jacobson, Fischer. Judge Pearce arrived 2:00. John Graham arrived.
Came to order, Mrs. Rebecca Quanrud, former secretary of Criminal Rules Committee for 4 years, was recognized. It was requested that her comments be entered into the record, as follows; "I REALLY MISS THE CRIMINAL RULES COMMITTEE, ESPECIALLY WHEN IT COMES TO TYPING UP THOSE MINUTES."
RULE 49
Rule 49, Service and Filing of Papers [adopted December 10, 1970] Paul Sand, sponsor. Minor change to subdivision (c) to reflect reference to North Dakota Rules of Appellate Procedure. No comparable A.B.A. standard.
Judge Muggli was Acting Chairman and the meeting came to order at 1:45.
Mr. Sand, sponsor, read Rule 49. He noted that in subdivision (e), line 3, the word "therein" should be "thereon". There was agreement to the change.
Mr. Sand MOVED to amend 49(c), line 6, to read "except as permitted by Rule 37(b) of these Rules and Rule 4(b) of the N.D.R.App.P.", and in addition that subdivision (e) be amended to read "taken thereon". Mr. Persinger seconded. Motion CARRIED unanimously. (See Attachment 6 for proposed Rule)
Explanatory Note
Mr. Sand read Rule 49 Explanatory Note. Mr. Sand noted that the second sentence of ¶2 is a restatement of the Rule, and Mr. Sand MOVED to strike the second sentence in ¶2, which begins "It requires that all written motions . . .". Judge Glaser seconded. Motion CARRIED without objection.
The RECORD notes the arrival of Judge Pearce.
Mr. Sand MOVED to amend ¶4, line 8, to include "under Rule 37(b) of these Rules and Rule 4(b) of . . .". Mr. Persinger seconded. Mr. Sand noted that this amendment was necessary for continuity with the amendment to the Rule. The motion to amend CARRIED unanimously.
STATUTES AFFECTED
Superseded:
29-28-10 no objection It was noted that the statutory provisions are contained in the Rule.
Mr. Sand MOVED to adopt Rule 49 as amended and the Explanatory Note, including statutes affected. Second by Mr. Persinger. Judge Erickstad called for the question; the motion CARRIED without objection.
RULE 50
Consideration of Rules 50 and 51 was delayed until John Graham, sponsor, could be present.
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RULE 52
Rule 52, Harmless Error and Obvious Error. [adopted December 10, 1970] Judge Glaser, sponsor. No language change. No comparable A.B.A. standard.
Judge Glaser, sponsor, read Rule 52 and the Explanatory Note. Judge Glaser MOVED to readopt Rule 52. Mr. Sand seconded; motion CARRIED.
Judge Glaser MOVED to amend ¶l of the Explanatory Note, line 10, to read "obvious error", not "plain error", and to delete the quotation marks in lines 8, 9, and 10. Judge Muggli seconded. It was noted that the change from plain to obvious error and removal of the quotation marks was for consistency with the Rules. Motion CARRIED unanimously. (See Attachment 9 for proposed Rule)
There was discussion on ¶2, line 7, the words "federal constitutional error". It was noted that Federal Constitutional error is a concern and that the practitioner should be cognizant--the sentence is appropriate.
Mr. Sand questioned the source of the second sentence in ¶3, "But the power to notice ... circumstances." There was no change.
STATUTES AFFECTED
Superseded:
29-28-26 no objection
There was no objection to the cross reference to Rule 61, NDRCivP, nor to the case cited, State v. Rohrick.
Judge Glaser MOVED to adopt Rule 52 and the Explanatory Note as amended in its entirety. Motion CARRIED without objection.
RULE 50
Rule 50, Calendars. [adopted November 19, 1971] John Graham, sponsor. No language change. See ABA Standard Relating to Criminal Justice as follows: SPEEDY TRIAL, §§1.1, 1.2, and 1.3.
John Graham, sponsor, read Rule 50. Mr. Graham MOVED to readopt the text of Rule 50. Second by Mr. Sand. CARRIED unanimously.
Mr. Graham MOVED to adopt the Explanatory Note to Rule 50. Mr. Sand seconded. No discussion; motion CARRIED. (See Attachment 7 for proposed Rule)
STATUTES AFFECTED
Considered:
Chapter 29-19 no objection
There was discussion on calendar call.
27-08-22 Mr. Graham noted that this statute would be well to have as a point of reference for the rule and MOVED to list as Considered under Rule 50 Section 27-08-22. Judge Ilvedson seconded. Motion CARRIED unanimously.
Mr. Graham MOVED to adopt Rule 50 and the Explanatory Note as amended. Mr. Persinger seconded. Motion CARRIED unanimously.
RULE 51
Rule 51, Exceptions Unnecessary. [adopted November 19, 1971] John Graham, sponsor. Second sentence deleted. No comparable A.B.A. standard.
Mr. Graham, sponsor, read Rule 51. Mr. Graham MOVED to amend line 2 of the Explanatory Note, as follows: "... to preserve a point on appeal...". Judge Erickstad seconded; the motion CARRIED. (See Attachment 8 for proposed Rule)
The reason for the staff's deletion of the second sentence was questioned. It was noted that the language was adopted from the federal Rule--but only the first and last sentence of that rule. Without the language from the federal
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Rule which was deleted the two sentences cannot stand together. Since the entire language of the Federal Rule was not desired, only the first sentence has the necessary applicability.
Mr. Graham MOVED to readopt Rule 51. Mr. Sand seconded.
Mr. Graham MOVED to adopt the text of the Explanatory Note to Rule 51 as amended. Motion CARRIED.
STATUTES AFFECTED
Superseded:
29-17-22 no objection It was noted that this statute is also superseded by Rule 24.
28-18-01 There was extended discussion. It was suggested that the statute be superseded. The applicability to the Civil Rules were noted. John Graham suggested leaving the statute Considered since the statute defines "exception" and the Rule provides that exceptions are unnecessary. The need for the statute remained in question. Mr. Travis pointed out that there would be no ham to allowing the statute to remain. no objection
29-21-32 It was noted that Section 29-21-32 was also superseded by Rule 30. no objection
29-21-33 It is also superseded under Rule 30. Judge Erickstad asked if this would change procedure. no objection
29-23-05 no objection
29-23-06 no objection
Considered:
29-17-26 Superseded by Rule 24; delete from list.
29-17-39 Superseded by Rule 24; delete from list.
29-21-12 Judge Pearce questioned the necessity for listing this statute. He MOVED to delete Section 29-21-12 from the list under Rule 51. Seconded by Mr. Graham. Motion CARRIED.
A question was raised concerning 27-09.1-12.
Mr. Graham MOVED to adopt Rule 51 with its Explanatory Note as amended.
Mr. Sand MOVED to include a Cross Reference to Rule 30. Mr. Graham seconded. It was noted that the necessity for the cross reference is the reference to Exceptions to Instructions in Rule 30(c). Cross Reference: "Rule 30. Instructions. Note: Rule 30 requires the taking of objection or exception." Judge Pearce seconded. Motion CARRIED without objection.
Mr. Sand MOVED to adopt Rule 51 together with the Explanatory Note. Motion CARRIED unanimously.
Discussion; Judge Pearce noted that H.B. 1493 was in some difficulty. He suggested the Committee back this bill since it was "better than nothing" and he would make the recommendation. He suggested reconsideration of Rule 23 in light of the outcome of this bill. [See Appendix, Status of Legislation affecting the Rules Committee for a discussion of the comments of Judge Knudson relative to this topic.]
RULE 53
Rule 53 Regulation of Conduct in the Courtroom. [adopted December 10, 1970] Judge Muggli, sponsor. No language change. See A.B.A. Standard Relating to FAIR TRIAL AND FREE PRESS, §3.5.
Mr. Sand, Acting Chairman. (See Attachment 10 for proposed Rule)
Judge Muggli, sponsor, read Rule 53 and the Explanatory Note. Judge Muggli MOVED to amend line 10 of the Explanatory Note to read "...in Estes in which court said . . .". Judge Ilvedson seconded; the motion CARRIED without objection.
Judge Muggli MOVED to adopt Rule 53. Mr. Persinger seconded. No further discussion and the motion CARRIED unanimously.
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Judge Muggli MOVED to adopt the Explanatory Note, as amended in line 10. Mr. Persinger seconded. CARRIED unanimously.
Judge Muggli made the "all-encompassing" MOTION to adopt Rule 53 together with the Explanatory Note. Mr. Persinger seconded. motion CARRIED.
RECONSIDERATION OF RULE 24
Judge Glaser suggested including Section 27-09.1-12 in the Explanatory Note to Rule 24. Judge Erickstad MOVED to reconsider the action by which the Committee adopted Rule 24.Judge Muggli seconded. CARRIED.
Mr. Travis noted the difficulty with the classification of "statutes superseded by Rule" and "statutes superseded by inference". Judge Erickstad MOVED to strike the reference material which reads "Superseded by Inference:" and in lieu thereof, at the end of the Explanatory Note, add a new paragraph explaining that Sections 29-17-09, 29-17-10, 29-17-11 29-17-13, 29-17-16, 29-17-17, 29-17-18, and 29-17-19 are apparently repealed by the adoption of the Uniform Jury Selection and Service Act, Chapter 27-09.1. Mr. Persinger seconded. Motion CARRIED.
It was noted that on page 1 of Rule 24, the statutes under the titles "Superseded" and "Superseded by Rule" should be contained under the one title "Superseded". Judge Muggli MOVED to list those statutes under the title "Superseded". Seconded by Mr. Persinger. Motion CARRIED without objection.
Judge Muggli MOVED to readopt Rule 24 Explanatory Note as amended. Seconded by Mr. Persinger; CARRIED without objection.
It was noted that the word Exceptions was suggested for change to objection. Judge Erickstad said that the Committee provided for the discrepancy in Rule 51.
Judge Ilvedson MOVED to RECESS until 9:00 a.m. the following day. CARRIED.
Thursday, February 22
Call to order at 9:10 a.m. Acting Chairman, Mr. Sand.
Attendance: Judge Erickstad, Judge Glaser, Judge Muggli, Mr. Sand, Judge Smith, Mr. Persinger, Judge Ilvedson (arrived 9:30), Judge Pearce. Staff present: Mr. Travis, Mr. Jacobson, Miss Fischer.
RULE 54
Rule 54, Application and Exception. [adopted November 19, 1971] Judge Smith, sponsor. No language change. No comparable A.B.A. standard.
Judge Smith, sponsor, read Rule 54 and the Explanatory Note. Judge Smith MOVED to adopt Rule 54. Judge Muggli seconded. In discussion, Judge Erickstad noted a problem with (b)(5)(iv) of the Rule, which reads "proceedings under the Uniform Juvenile Court Act, Chapter 27-20 of the North Dakota Century Code, so far as they are inconsistent with that Act; or". The Federal Rule says that the filings of the trial court should not be set aside unless completely erroneous. Juvenile court proceedings were discussed with relation to their applicability to the Rules. (See Attachment 11 for proposed Rule)
Judge Smith MOVED to strike the words ", so far as they are inconsistent with that Act" in 54 (b)(5)(iv). Judge Muggli seconded. Motion CARRIED unanimously.
Discussion on Rule 54 was interrupted at this point to act on Rules 23 and 5 because Judge Glaser, sponsor of Rule 23, had to leave.
RECONSIDERATION OF RULE 23
Judge Glaser MOVED to amend Rule 23(a) to strike "in which the punishment for conviction may exceed 30 days imprisonment or a fine of more than $500" and to insert in lieu thereof the words "as provided by law" to be consistent not only with the action of the legislature but with the Constitution. Judge Smith seconded the motion.
Reference was made to Territorial Rev. Code of 1887, Chapter 24, §71, page 96, which provided that violation of a municipal should be tried and determined by a justice of the peace without supervision of a jury -- that the trial shall be by a jury of 12 citizens of such town. Judge Erickstad MOVED to delay action
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on this until Judges Pearce and Glaser could be present. Judge Muggli seconded. CARRIED.
Judge Erickstad asked Judge Glaser to speak on the philosophy of his motion. Judge Glaser explained that the language sought to be stricken had been inserted to provide direction to the legislature to create a class of petty offenses for which jury trial is not permitted -- as under federal law. A bill was drafted for legislative action, and that bill was indefinitely postponed. Therefore the language of the Rule is incorrect without the amendment. He continued that such a provision is substantive and his position has remained that the Committee has no right to provide for substantive procedure. He added that the bill which deletes the right to jury trial in municipal court cases but permits a jury trial on appeal is all right so long as the defendant is entitled to a jury trial at at least one stage.
RULE 54
Judge Smith asked to read into the RECORD, in respect to jury trial, Article VI of the U.S. Constitution as follows; In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defense.
Section 7, Declaration of Rights, of the N.D. Constitution follows; The right of trial by jury shall be secured to all, and remain inviolate; but a jury in civil cases, in courts not of record may consist of less than twelve men, as may be prescribed by law.
Judge Smith MOVED to adopt Rule 54 as amended. Judge Muggli seconded. Motion CARRIED.
Explanatory Note
Discussion of paragraph (b)(3). Judge Smith questioned the language "necessary and proper" in line 2 and recommended "appropriate".
The RECORD notes the arrival of Judge Pearce.
For the RECORD: in re Sanderson, 286 N.W. 198 (1939) - a Michigan case, "but a person under bond for keeping the peace or their good behavior".
54(b)(3), Peace Bonds. Several of the Committee members together with the staff recessed to the library to research the possibility of a recent U.S. Supreme Court case declaring the peace bond unconstitutional. No such case could be found, however a number of Pennsylvania cases held against the Peace Bond. Judge Ilvedson commented that subdivision (b)(3) is complete. Issuance of a subpoena may apply under it.
Judge Smith suggested changing the word "must" to "may" in line 5. The suggestion was stricken.
Where the law on the peace bond is silent, the Rule must apply.
However, these Rules do not alter the power of the magistrates ... state.
Judge Ilvedson MOVED to add the following language in line 4 and subsequent of 54(b)(3) -- delete "the laws of this state" and add in lieu thereof "Chapter 29-02, NDCC. However, these Rules are applicable to procedure under Chapter 29-02 so far as they are not inconsistent therewith. Motion seconded by Judge Smith and CARRIED without objection.
Judge Smith MOVED to amend ¶2 on page 3 of the Note; "Subsection (b)(3) recognizes that these Rules shall apply to peace bond procedures when not in conflict with Chapter 29-02, NDCC."Judge Muggli seconded. Motion CARRIED.
Incorporate into the Explanatory Note the following case: Roberts v. Janco, 335 F.Supp. 942. A person held under peace bond statute -- if indigent -- is entitled to legal counsel.
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STATUTES AFFECTED
Superseded:
40-18-11 no objection Since this statute was also contained in the Considered list, Judge Smith MOVED to strike reference to Section 40-18-11 in the list of Statutes Considered. Judge Muggli seconded. Motion CARRIED.
Considered:
40-05-01 no objection
40-18-07 Judge Ilvedson MOVED to supersede Section 40-18-07.Second by Judge Muggli. Motion CARRIED unanimously.
40-18-08 thru 40-18-21 are contained in the list. It was noted that Section 40-18-10 has been repealed, therefore it is deleted without further Committee action.
Judge Pearce questioned the reason for including (b)(1) of the Rule pertaining to ordinances. Judge Smith noted that there are many ordinance violations which are regulatory in nature. Judge Erickstad noted that it is so infrequent as to be almost nonexistent when a regulatory proceeding requires incarceration, therefore this section is unnecessary.
Reconsideration of Rule
Judge Erickstad suggested reconsidering Rule 54 to amend. Judge Smith referred to Rule 54(b)(1) and suggested rewording. Judge Smith MOVED to reconsider action on Rule 54. Judge Erickstad seconded. CARRIED.
Judge Smith MOVED to eliminate (b)(1) Ordinances and to renumber subsequent paragraphs accordingly. Judge Erickstad seconded. Motion CARRIED.
Judge Smith MOVED to renumber the paragraphs of the Explanatory Note accordingly. Second by Judge Erickstad; CARRIED.
Judge Erickstad suggested the Argersinger case be included in (a). He said that this case preserves the advice which the magistrate must give. Make correction.
It was suggested the reference to Argersinger cited in ¶4 (deleted) would properly be placed in Rule 5 rather than this Rule.
Statutes Considered:
40-18-08 Judge Pearce MOVED to supersede Section 40-18-08.Judge Muggli seconded. Motion CARRIED unanimously.
40-18-09 Judge Pearce MOVED to supersede section 40-18-09.Judge Muggli seconded. CARRIED.
40-18-12 no objection Judge Pearce said that this statute is incorrect and should have been amended.
40-18-13 Judge Pearce MOVED to supersede Section 40-18-13. He said that provision for what is included here is in Rule 32. Judge Erickstad seconded. CARRIED.
40-18-14 Judge Pearce MOVED to supersede Section 40-18-14. He said that all contempt situations were provided for. Second by Mr. Persinger. Motion CARRIED.
40-18-15 no objection Judge Erickstad said that this statute contained substantive and is being affected by statute.
40-18-16 no objection It was noted that this statute relates to jury procedure in municipal courts and consideration of this statute is premature until the legislature acts.
40-18-17 and 40-18-18 Mr. Sand referred to Rule 24, the footnote explaining Committee action and on Section 40-18-17; "It was the consensus of the Committee that Section 40-18-17, NDCC (Challenges for cause to jurors in court of municipal judge.) was superseded with the idea that this would encourage municipal courts to resort to the jury list that is available now."
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40-18-17 and 40-18-18 deemed superseded by Chapter 27-09.1. Mr. Sand said Section 40-18-17 is purely procedural. 40-18-17 is superseded by Rule 24.
Judge Pearce MOVED to supersede Section 40-18-17 under Rule 54. He said that 40-18-16 and 40-18-18 should remain Considered. Judge Erickstad seconded. Motion CARRIED.
Judge Muggli referred to Section 40-18-13, which the Committee took action to supersede. He felt it should remain to permit the municipal judge to suspended sentence. Judge Ilvedson MOVED to reconsider action on Section 40-18-13 to leave it as Considered.Judge Muggli seconded. Motion CARRIED.
Thursday p.m., brought to order by Mr. Sand, Acting Chairman. Attendance: Judge Erickstad, Judge Glaser, Judge Ilvedson, Judge Pearce, Mr. Persinger,
Mr. Sand, Judge Smith. Staff present: Mr. Travis, Mr. Jacobson, Miss Fischer.
40-18-18 Judge Pearce MOVED to delete reference to Section 40-18-18. Second by Judge Smith and CARRIED.
40-18-19 Judge Pearce MOVED to delete reference to Section 40-18-19. Judge Smith seconded. Motion CARRIED.
40-18-20 Judge Pearce MOVED to delete Section 40-18-20 from the Considered list. Judge Smith seconded. Motion CARRIED unanimously.
40-18-21 Judge Pearce MOVED to delete Section 40-18-21 from the list of statutes Considered. Judge Smith seconded. CARRIED.
Judge Pearce stated that he thought reference to Section 40-18-11 is the only pertinent statute because it refers to the procedure taken in a municipal court. Judge Ilvedson agreed -- he said that the fewer statutes referred to here the better. Judge Pearce commented that with regard to subdivision (b) of Rule 54, that reference is properly made to the various applicable Chapters, but with reference to subdivision (a) -- which is a very broad and general concept, all the rules refer thereto -- and that all statutes would apply -- and none should, therefore, be considered here.
Chapters Considered:
25-02 It was suggested that what was meant was 25-03. Judge Smith MOVED to list chapter 25-03 as Considered. Judge Pearce seconded. Motion CARRIED.
25-05 no objection
27-05 no objection
27-07 Judge Smith MOVED to delete Chapter 27-07 and add 27-08.Motion WITHDRAWN. Judge Smith MOVED Chapters 27-05 and 27-07 be deleted from statutes Considered. Judge Pearce seconded. Motion CARRIED unanimously.
27-16 (Juvenile Court) no objection Judge Pearce commented that this Chapter is appropriately considered.
27-20 no objection Judge Pearce commented that this Chapter is appropriately considered.
29-02 no objection Peace Bond
32-22 no objection Habeas Corpus
33-12 Procedure in justice courts. Judge Pearce noted that this entire Chapter deals with procedure in justice court and that many of the sections have been superseded.
Judge Smith MOVED Chapter 32-36 be added after 32-22, to be consistent (paternity cases). Judge Pearce seconded. Motion CARRIED without objection.
Mr. Persinger MOVED to delete reference to Chapter 27-16 on the basis that it has been repealed. Seconded by Judge Pearce. CARRIED.
Judge Pearce MOVED to delete reference to Sections 40-18-12, 40-18-13, 40-18-15, 40-18-16, and 40-18-17 (Considered). He said that it made no sense to consider these statutes separately. Judge Smith seconded. Reference to 40-05-01 is also deleted.
It was noted that Sections 40-18-07, -08, -09, -14 and -17 should be superseded under the pertinent rule, not under Rule 54. Judge Pearce MOVED to reconsider action on Sections 40-18-07, 40-18-08, 40-18-09, 40-18-14, and 40-18-17. Mr. Persinger seconded. The motion to reconsider CARRIED.
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Judge Pearce MOVED to delete reference to those five statutes (above) from Rule 54. Seconded by Judge Smith. Motion CARRIED and it was noted that these statutes are now in "never-never" land.
Considered:
12-02-01 Judge Pearce MOVED to delete reference to Section 12-02-01. Second by Judge Smith. CARRIED without objection.
25-03-21 and 25-05-03 Judge Glaser MOVED to delete reference to Sections 25-03-21 and 25-05-03 because the entire Chapters 25-03 and 25-05 are Considered. Judge Pearce seconded. Motion CARRIED.
27-08-24, 27-08-30, etc. Judge Smith MOVED to delete reference to individual section references to Chapter 27-08 and to list the entire Chapter 27-08 as Considered, to be consistent with the reference to the other organizational statutes. Second by Judge Ilvedson. Motion CARRIED.
Judge Pearce questioned what value the listing of those sections has. He suggested the statutes listed be limited to (b). Judge Pearce MOVED to delete everything from Considered except the following Chapters: 25-03, 25-05, 27-20, 29-02, 32-22 and 32-36. Judge Smith seconded. Motion CARRIED. (The result of the motion was to delete from Considered Chapters 25-02, 27-08, and 33-12.)
Judge Smith MOVED to adopt the Rule, Explanatory Note, and Statutes Affected. Judge Pearce seconded. Motion CARRIED unanimously.
RECONSIDERATION OF RULE 4
Judge Pearce MOVED to reconsider Rule 4 for the purpose of including two statutes. Mr. Persinger seconded. The motion CARRIED.
Judge Pearce MOVED to include in superseded statutes under Rule 4 Sections 40-18-07 and 40-18-08. Mr. Persinger seconded. Mr. Jacobson read an excerpt from the Minutes re 40-18-08, words of Judge Erickstad re warrants outside of municipality. Reference to Rule 4(a)(1). The motion CARRIED.
Judge Pearce MOVED to readopt Rule 4 and the Explanatory Note as amended. Seconded by Judge Smith. CARRIED.
Section 29-01-14, Judge Pearce said, limits the jurisdiction of city magistrate.
RULE 23
Judge Glaser proposed to amend 32(a) pursuant to the action of the legislature in rejecting H.B. 1266 -- proposed by the Criminal Rules Committee. This bill provided that jury trials would not be available for offenses which carried a penalty of less than 30 days in prison or a fine of less than $500. This language is now contained in Rules 23 and 5 and now must be deleted. Judge Glaser MOVED to delete the words "in which the punishment for conviction may exceed 30 days imprisonment or a fine of more than $500" and insert in lieu thereof, "as provided by law". Call for question. CARRIED.
Discussion of Explanatory Note. It was decided that ¶1 of the Explanatory Note would remain for its educational value and for its value as it pertains to Federal law.
It was noted that with the amended language, the statutes affected would have to be reconsidered.
STATUTES AFFECTED
27-08-40, 27-08-41 Judge Glaser MOVED to list as Considered Sections 27-08-40 and 27-08-41. Judge Ilvedson seconded. Motion CARRIED.
29-16-02 Judge Ilvedson felt that this section is the basic law providing for trial by jury. Judge Ilvedson MOVED to remove from the Superseded list and place under the Considered list Section 29-16-02. Mr. Persinger seconded. CARRIED without objection.
33-12-19 Judge Ilvedson MOVED to Consider Section 33-12-19.Mr. Persinger and Judge Pearce seconded. Motion CARRIED.
40-18-15 Judge Pearce MOVED to Consider. Second by Mr. Persinger.
Judge Glaser MOVED the all-encompassing motion to adopt Rule 23 and the Explanatory Note. Mr. Persinger seconded. CARRIED.
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RULE 5
Judge Smith MOVED to reconsider Rule 5 for the purpose of amending the language of 5(b)(3). Judge Glaser seconded. Motion CARRIED.
Judge Glaser MOVED to amend 5(b)(3) by striking the words "where the punishment for conviction exceeds 30 days imprisonment or a fine of more that $500 or both such fine and imprisonment" and by inserting "as provided by law" in lieu thereof. Mr. Persinger seconded. Motion CARRIED unanimously.
Judge Smith suggested an addition to 5(b) as follows; "(vii) The magistrate shall inform the defendant of the maximum and minimum penalty provided for conviction of the offense charged.", due to Boykin decision. It was pointed out by Judge Glaser that such a provision belongs under arraignment -- under pleading. Reference to Rule 11(c)(2). Judge Smith WITHDREW the motion.
Mr. Persinger MOVED to add to the list of cases under Rule 5, Argersinger v. Hamlin, 92 S.Ct. 2006, 407 U.S. 25, 32 L.Ed.2d 530 (1972). Motion was seconded and CARRIED without objection.
STATUTES AFFECTED
Judge Erickstad suggested reviewing all of the statutes affected under Rule 5 because he said that it is important in light of the change of direction. It was proposed by Judge Erickstad that the Committee work on Friday.
Superseded:
29-05-04 no objection
Mr. Sand noted that Section 29-05-11 is among the statutes superseded by previous action. Judge Smith said that it should remain statute because under the rule the felon would be brought before a magistrate of the county where the offense occurred.
29-07-01 Also superseded by Rule 44. no objection
29-07-02 no objection
29-07-03 Judge Smith MOVED to place Section 29-07-03 in the Considered list. He said this statute is seldom used. Judge Erickstad seconded. CARRIED without objection.
29-07-04 no objection Covered in the Rule.
29-07-05 no objection Covered in the Rule.
29-07-06 Judge Erickstad questioned whether this statute is properly superseded under this Rule. Judge Smith said that this statute should be repealed because police magistrates do not hold preliminary hearings. Judge Smith suggested superseding this statute under Rule 5.1. MOTION to move Section 29-07-06 from Superseded to Considered list. Judge Muggli seconded. CARRIED without objection.
29-07-07 no objection
29-07-08 no objection
29-07-09 no objection Mr. Travis read the prior Committee
29-07-10 no objection disposition on these statutes from
33-12-07 no objection the Minutes.
33-12-09 no objection
40-18-15 Judge Smith MOVED to remove Section 40-18-15 from the Superseded list and place it in the Considered list. Second by Judge Ilvedson. CARRIED without objection.
40-18-16 Should be placed in the Considered list. Seconded by Judge Muggli.
40-18-17, 40-18-18 MOTION that Sections 40-18-17 and 40-18-18 be removed from the Superseded list and be placed in the Considered list.
Judge Ilvedson MOVED to adopt Rule 5 as amended together with the Explanatory Note as amended. Second by Judge Muggli. CARRIED.
Meeting RECESSED until 9 a.m. Friday.
Friday, February 23
Meeting RECONVENED at 9:25 a.m. with Mr. Sand, Acting Chairman.
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Attendance: Judge Erickstad, Judge Ilvedson, Mr. Sand, Judge Smith, Mr. Persinger. Staff present: Mr. Travis, Mr. Jacobson, Miss Fischer.
Statutes Affected--Rule 31
Judge Smith, sponsor. It was explained that the first draft of the Rules will be mailed. Judge Smith suggested intermediate size. At the next meeting, the last draft will be presented, with a proposed appendix of forms. After that, it will be printed in book form for presentation to the Court.
Judge Smith read Rule 31 to refresh the minds of the Committee prior to acting on Statutes.
Explanatory Note--Rule 31
Judge Smith MOVE to amend paragraph 2 of the Explanatory Note to read in line 3, "...that the U.S. Supreme Court has allowed less than unanimous verdicts." Mr. Persinger seconded. CARRIED.
It was noted to correct the cites in that paragraph.
Judge Smith suggested line 5 of the last paragraph of the Note should be amended to read "A determination of (((the))) factual issues...". Mr. Sand noted the word "should" in line 2 of ¶3. He stated that "should" is advisory language allowing discretion and suggested "may".
Judge Smith MOVED to amend ¶4 by deleting the two sentences which begin "But the lesser..." and the following sentence (the last 5 lines), and changing the first word of the paragraph from "By" to "Under". Judge Ilvedson seconded. Motion CARRIED without objection.
Judge Smith MOVED to change the word "should" to "may" in line 2 of ¶3. Mr. Persinger seconded. The motion CARRIED without objection.
Judge Smith MOVED to change the word "does" to "would" in line 5 of paragraph 3. Mr. Persinger seconded. The motion CARRIED.
Judge Smith MOVED to amend line 5 of the last paragraph to add an "s" to issue and strike the word "the" so it would read, "A determination of factual issues in specific...". Mr. Persinger seconded. Motion CARRIED.
STATUTES AFFECTED
Superseded:
29-22-12 Judge Ilvedson was not in favor of superseding this statute. The merit, he said, was that the jury's verdict would be included in the minutes. Judge Erickstad asked what the statute means in that "They upon being required must declare the same". Judge Ilvedson MOVED to remove Section 29-22-12 from the Superseded list and place it in the Considered list. Second by Judge Smith. Motion CARRIED.
29-22-13 no objection
29-22-15 Judge Erickstad felt that statute (and 29-22-17) would create problems. (e) Special Verdicts takes care of it. Judge Smith MOVED to leave Section 29-22-15 in the Superseded list and to remove it from the Considered list. Second by Judge Ilvedson and the motion CARRIED.
Judge Smith MOVED to supersede Section 29-22-17. Second by Judge Ilvedson. Motion CARRIED.
29-22-23 It was felt it is covered by subdivision (c). no objection
29-22-25 no objection
It was noted from the Minutes of a previous meeting, that the source of subdivision (e) is §337, Code of Criminal Procedure, American Law Institute.
Discussion on Section 29-22-16. "He must be not guilty by reason of insanity." Judge Ilvedson felt that statute is necessary for that form of finding.
33-12-24 Judge Smith MOVED to move Section 33-12-24 to the Considered list.
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Judge Ilvedson seconded. CARRIED unanimously. Judge Ilvedson MOVED to reconsider action on Section 33-12-24 to remove it from the Considered list and reinstate it as a Superseded statute. Second by Mr. Persinger.
Discussion. Judge Smith referred to H.B. 92-285, Rule 31, subdivision (e). Mr. Travis read a letter from Judge Burdick in which Judge Burdick urged the inclusion of special verdicts in the Rule.
Judge Smith cited case of U.S. v. Spock in 416 F.2d 165 at 182 and headnote #22, "In this circumstance the government makes two answers...". He added that there is a whole series of cases cited.
Judge Ilvedson favored superseding Section 29-22-16 because it is covered by special verdicts and it is not necessary to get involved with specific phraseology.
Judge Smith seconded the motion to reconsider Section 33-12-24 -- now superseded again.
It was noted to add 38 A.L.I., etc., to Sources.
After coffee break at 11:00, the Committee considered amendment to Sources.
Judge Ilvedson MOVED to add "Section 337 and commentary thereto, Official Draft, Code of Criminal Proc. by the American Law Institute (1930)." Second by Mr. Persinger. CARRIED unanimously.
Judge Ilvedson noted 29-22-36 -- the jury finds the defendant guilty by reason of insanity. He said that this statute gives the judge the authority to place a person in a state hospital.
Judge Smith MOVED to add to the Explanatory Note, last paragraph, following the Grey cite, "But see U.S. v. Spock 416 F.2d 165, 182 (1st Cir. 1969) fn 41." Has to do with the limitation of special verdicts. Second by Mr. Persinger. CARRIED unanimously.
Judge Ilvedson clarified that he wanted the ALI cite to the Explanatory Note, paragraph (e), not to the "Sources". Judge Ilvedson MOVED that the cite to §337 A.L.I. Code of Crim. Proc. be added to the Explanatory Note for subdivision (e). Second by Mr. Persinger. CARRIED.
Statutes Considered:
29-22-01 no objection
29-22-02 no objection
29-22-03 no objection
29-22-04 no objection
29-22-05 no objection
29-22-06 no objection
29-22-07 no objection
29-22-08 no objection
29-22-09 no objection
29-22-10 no objection
It was noted that Section 29-22-11 is superseded by Rule 43.
29-22-14 no objection
29-22-16 Judge Ilvedson MOVED to supersede Section 29-22-16.Mr. Persinger seconded. The motion CARRIED without objection.
29-22-18 Judge Smith MOVED that Section 29-22-18 be placed on the Superseded list and removed from the Considered list. Second by Judge Ilvedson. CARRIED without objection.
29-22-19 Judge Smith MOVED to supersede. Judge Ilvedson seconded. CARRIED.
29-22-20 no objection
29-22-21 no objection
29-22-22 no objection
29-22-24 no objection
29-22-26 no objection
29-22-27 no objection
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29-22-28 no objection Comments: Judge Erickstad asked what it means; Judge Ilvedson said it is obscure.
29-22-29 no objection
29-22-30 no objection
29-22-31 no objection
29-22-32 no objection Comment: It was felt it is superfluous -- "a problem situation".
29-22-33 no objection
29-22-34 no objection
29-22-35 no objection
29-22-36 no objection
29-22-37 no objection Comment: last subsection in 29-22-37 raises an unusual possibility.
Acting Chairman Sand noted that Section 29-22-32 refers to Section 29-22-16, which has been superseded. Judge Ilvedson MOVED to remove Section 29-22-16 from Superseded and to include it in statutes Considered. Second by Judge Smith. CARRIED without objection.
12-06-06 no objection
Judge Burdick's letter, read earlier, was reviewed for references to statutes that may not be included. Sections 12-06-19, 12-06-20 and 12-06-21 were looked at but not added to the list.
Judge Smith MOVED to readopt Rule 31 and the Explanatory Note as amended. Mr. Persinger seconded. CARRIED without objection.
RULE 3
Mr. Travis noted that the two statutes noted, 29-02-06 and 29-02-07, were included in the Rule but were not included for action in the Minutes.
Judge Smith MOVED to remove from the list of Statutes Considered Sections 29-02-06 and 29-02-07 because they pertain to a form of procedure covered by another rule and are not germane to this Rule. Motion WITHDRAWN.
Judge Erickstad MOVED to consider Section 29-02-07. Second by Mr. Persinger. CARRIED without objection.
Judge Erickstad MOVED to leave Section 29-02-06 in the Considered list but to strike the asterisk. Second by Judge Smith. Motion CARRIED unanimously.
Judge Smith MOVED that the three cases of Whitely v. Warden of Wyoming, State v. Erdman, and Giordenello v. U.S. must be shown as follows: Aguilar, Giordenello, Spinelli and Whiteley.
CASES: Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)
Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)
Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1301, 28 L.Ed.2d 306 (1971)
MOVED by Judge Smith; second by Mr. Persinger; CARRIED without objection.
Mr. Persinger MOVED recess for lunch. CARRIED without objection.
Judge Erickstad MOVED to remove footnote citing Giordenello.Second by Judge Smith and CARRIED without objection.
Meeting called to order at 1:45 p.m. Mr. Sand, Acting Chairman. Present: Judge Erickstad, Mr. Graham, Judge Ilvedson, Mr. Persinger, Judge Smith; and staff Travis, Jacobson, Fischer.
Considered:
29-05-01 no objection Mr. Travis read the action previously taken by the Committee.
29-05-02 no objection
29-05-03 Judge Smith MOVED to supersede Section 29-05-03. Mr. Persinger and Mr. Graham seconded. CARRIED without objection.
29-05-05 no objection
It was noted that Section 29-05-06 is superseded under Rule 4.
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12-01-04(12) no objection
29-01-14 no objection
Superseded:
29-01-13(l) no objection
33-12-03 no objection Mr. Persinger MOVED to include Section 33-12-03 in Statutes Superseded. Mr. Graham seconded. CARRIED without objection.
33-12-04 Judge Smith MOVED to supersede Section 33-12-04. Mr. Graham seconded. CARRIED without objection.
33-12-05 Mr. Graham MOVED to list Section 33-12-05 as Superseded. Second by Judge Smith. Motion CARRIED without objection.
33-12-06 Mr. Graham MOVED it be deleted from the list of superseded statutes under Rule 3. Mr. Persinger noted that Section 33-12-06 is superseded under Rule 58. It was decided that it is properly superseded under Rule 4. Motion seconded by Judge Smith and CARRIED without objection.
33-12-16 Mr. Graham MOVED it be listed as Superseded. Second by Judge Smith. CARRIED.
33-12-25 Judge Erickstad felt Section 33-12-25 is covered under 31(b) Several Defendants and that that is where it should be superseded. Judge Erickstad MOVED Section 33-12-25 be deleted from Superseded under Rule 3. Mr. Persinger and Mr. Graham seconded. Motion CARRIED unanimously.
Judge Smith MOVED Rule 3 and the Explanatory Note as amended be readopted. Mr. Graham seconded. CARRIED.
RULE 31
Mr. Graham MOVED to reconsider Rule 31. Mr. Persinger seconded; motion CARRIED.
Mr. Graham MOVED to supersede Section 33-12-25 under Rule 31, as covered by subdivision (b). Judge Erickstad seconded. CARRIED.
Mr. Persinger MOVED to readopt Rule 31 as amended. CARRIED.
Mr. Graham MOVED to supersede Sections 29-05-07 and 33-12-06 under Rule 4. Mr. Persinger seconded. CARRIED.
Judge Smith MOVED to show those statutes listed and Section 29-05-31 as Considered. Mr. Persinger seconded. Motion CARRIED.
29-05-10 no objection
Superseded:
29-05-08 Judge Smith MOVED to supersede. Mr. Persinger seconded. Motion CARRIED.
Mr. Graham noted Section 29-05-17. Judge Ilvedson felt 46(a)(1)iii covers it. Authorizing release from custody shall inform such person of the penalties. . . The issue was what disposition to make of Section 29-05-17.
Judge Erickstad explained that 29-12-02 was "penciled" in because it had been deleted due to a clerical error. Mr. Graham said it is pertinent under Rule 5(a).
29-12-02 John Graham MOVED to delete Section 29-12-02 from Rule 4 because, said, this statute isn't appropriate under Rule 4. Under Rule 4 the provision is for the initial arrest warrant and 29-12-02 speaks of a bench warrant upon arraignment. Motion seconded by Judge Smith. CARRIED without objection.
Judge Ilvedson MOVED to readopt Rule 4 and the Explanatory Note as amended. Mr. Persinger seconded. Motion CARRIED without objection.
RULE 5
Mr. Graham MOVED to reconsider Rule 5. Judge Smith seconded. CARRIED without objection.
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Mr. Graham MOVED to supersede Section 29-05-17 under Rule 5. Second by Judge Smith and CARRIED.
Mr. Graham noted that Section 29-05-19 has an internal reference to 29-05-17 and therefore should be superseded. Judge Ilvedson MOVED to supersede Section 29-05-19 under Rule 5. Mr. Graham seconded. CARRIED.
Mr. Graham MOVED to readopt Rule 5. Mr. Persinger seconded. CARRIED.
RULE 5.1
Rule 5.1 was reopened for the purpose of examining Sections 29-07-13 and 29-07-14 which are listed as Considered under Rule 5.1 but were not listed in the Minutes. It was felt they were properly listed. Judge Ilvedson MOVED to list as Considered under Rule 5.1 Sections 29-07-13 and 29-07-14. Second by John Graham. Motion CARRIED.
Mr. Graham MOVED to readopt Rule 5.1. Mr. Persinger seconded.
RULE 10
Rule 10 was reopened for the purpose of examining Section 29-13-01 not listed in the Minutes of 3-23-72, page 21. Mr. Graham MOVED to list as Superseded under Rule 10 Section 29-13-01.Judge Smith seconded. CARRIED.
Mr. Graham MOVED to strike the last sentence of the Explanatory Note. It reads "Technical objections ... under Rule 52." Judge Ilvedson seconded. CARRIED. John Graham noted that the reason for his motion was that the language was misleading.
Judge Smith suggested the footnoted cite to Garland be lifted to line 8 of paragraph 2 of the Note because it is properly cited after the sentence. Judge Ilvedson so MOVED. Mr. Graham seconded and the motion CARRIED.
Mr. Graham MOVED to readopt Rule 10 and the Explanatory Note as amended. Mr. Persinger seconded. Motion CARRIED.
RULE 20
Rule 20 was reopened to consider 33-12-13, because the Minutes of 10-17-72, page 5, do not reflect the Committee's action. Section 33-12-13 is listed as Superseded. Mr. Graham MOVED to strike Section 33-12-13 from Superseded and to list it along with Section 33-12-12 as Considered under Rule 20. Judge Ilvedson seconded. Motion CARRIED.
Mr. Graham MOVED to readopt Rule 20 and the Explanatory Noteas amended. Mr. Persinger seconded. Motion CARRIED.
Mr. Sand said that Sections 29-09-03 and 29-09-04 are properly superseded under Rule 19.
RULE 46
Section 29-12-02 was reviewed in light of 46(a)(1)(iii), "A magistrate authorizing the release of a person under this section shall issue an appropriate order containing a statement of the conditions imposed, if any, shall inform such person of the penalties applicable to violations of the conditions of his release and shall advise him that a warrant for his arrest will be issued immediately upon any violation."
Mr. Graham MOVED to reconsider action on Rule 46. Judge Ilvedson seconded. Motion CARRIED without objection.
Mr. Graham MOVED Section 29-12-02 be listed as Superseded under Rule 46. Second by Judge Ilvedson. CARRIED without objection.
Mr. Graham MOVED to readopt. Mr. Persinger seconded. CARRIED without objection.
FUTURE (LAST) MEETING
The staff noted that it would be difficult to make the necessary preparations
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for the last meeting which is scheduled for March 26th (one month). Judge Erickstad suggested rescheduling the final meeting. Mr. Sand commented in favor of scheduling the meeting in April. He also suggested that proposed changes to the Rules and/or the Explanatory Notes MUST BE IN ADVANCE, in letters to the staff.
The final meeting was set for Tuesday, April 24 at 1:00 thru Friday, April 27. It was the consensus of the Committee that any changes be submitted in writing at least 10 days before the next meeting so that the staff could disseminate the information. That will be the only way to introduce substantial changes in the final copy.
Drafts of the Rules were left with the staff to insert revised pages. Judge Erickstad instructed the staff to save the pages that are deleted and return them. Judge Erickstad suggested a signature sheet for the book of printed Rules.
ADJOURNMENT
Judge Ilvedson MOVED to adjourn. Motion CARRIED.