Joint Procedure Committee Meeting
Scheduled on Tuesday, April 24, 1973 @ 2:30 PM
MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
for the Adoption of Rules of Criminal Procedure
April 24-26, 1973
The final meeting of the Criminal Rules Committee was called to order at 1:30 p.m. on Thursday, April 24, by Justice Erickstad, Chairman.
ATTENDANCE
Members Present:
Hon. Ralph J. Erickstad, Chairman
Hon. Eugene A. Burdick
Mr. John A. Graham
Hon. William S. Murray
Mr. Roger Persinger
Mr. Paul M. Sand
Mr. John G. Shaft
Hon. Kirk Smith
Mr. Robert L. Vogel
Hon. Roy A. Ilvedson (arrived at 2:45 p.m.)
Hon. Norbert J. Muggli (arrived at 3:30 p.m.)
Members Absent:
Hon. Gerald G. Glaser
Hon. James Morris
Hon. Harry J. Pearce
Staff Present:
Mr. Charles M. Travis, Criminal Code Reviser
Mr. John E. Jacobson, Assistant Code Reviser
Dona Fischer, Secretary
MINUTES OF PREVIOUS MEETING
The first item of business was consideration of the Minutes of the meeting of February 20-23. Mr. Graham MOVED to adopt the Minutes as mailed. Motion was seconded by Judge Murray and CARRIED.
ADMINISTRATIVE REMARKS
Mr. Travis noted the material that had been mailed to Committee members in advance. He spoke about the projected timetable for completion of the Criminal Rules to final publication; he stated that any changes made at this meeting will be inserted and the Rules will then be printed. Mr. Travis stated that he expects to allow three weeks time for typing the final draft, and several weeks for printing 1300 copies.
Mr. Jacobson spoke on the ABA Comparative Analysis of the North Dakota Proposed Rules of Criminal Procedure with the American Bar Association Standards for Criminal Justice (April, 1973), which he had prepared and bound copies of which were distributed at the meeting. It would be used to benefit the court in their consideration and review of the Rules and hopefully would aid the more extensive study underway. Judge Erickstad noted that the LEAA allowed $15,000 to the U.N.D. Law School for their comparative analysis project.
Mr. Travis noted that the Criminal Rules office had on February 19th received the January 1973 revised amendments to the Federal Rules. The following Rules were affected;
Rule 11 -- deals with Pleas and has been amended. Mr. Travis did not feel the amendments must be considered.
Rule 6 -- Grand Jury. The NDRCrimP has no Rule, therefore inapplicable.
Rule 23 -- The North Dakota Rules does not include the language of the Federal Rule to which the amendment applies, therefore the amendment is inapplicable for the Committee's purposes.
Rule 24 -- deals with trial jurors and reduces the number of peremptory challenges permitted. It is reduced from 20 to 12 in capital cases. North Dakota allows 15.
Rule 35 -- correction and reduction of sentence.
Rule 41 -- search and seizure. This Rule divides subdivision (c) into two subsections: (1) contains existing law and permits the
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issuance of a warrant upon affidavit, (2) proposes to permit the issuance of a warrant upon oral information.
Rule 43 -- presence of defendant. Adds a further subsection to provide that a trial may start without the defendant's presence. It is provided in the Rules.
Judge Smith MOVED to receive and file the January 1973 proposed amendments to the Federal Rules with the records of the Committee.Second by Mr. Graham. It will be filed together with the Minutes.
CONSIDERATION OF COMMITTEE MEMBERSHIP SHEET
Judge Erickstad noted that the purpose of reviewing this material was to determine whether each member of the Committee was satisfied with the manner in which he was identified on the sheet.
Judge Burdick suggested the addresses be listed in the manner "ND", without the periods, as per Post Office procedure. There was no change.
ENABLING STATUTES
Judge Smith MOVED to amend the title line to read "NORTH DAKOTA CENTURY CODE -- §27-02-08 through §27-02-15", deleting the reference to year. Second by Mr. Persinger. Motion CARRIED.
PETITION
It was noted that the petition will be circulated for members' signatures at the Wednesday evening banquet.
Judge Smith suggested that the date in line 3 should be amended to read "June, 1967", not "October". Mr. Graham suggested the word "designated" in line 3 be changed to read "appointed".
In reference to the date, it was noted that the Committee was authorized in June of 1967, and names of appointments were submitted in October. Page 124 of the Judicial Council Minutes record the date as June 27, 1967. It was agreed to delete the reference to the month and list only the year "1967".
Judge Burdick MOVED to amend the Petition, as follows;
WHEREAS, a Joint Committee of the (((North-Dakota))) State Bar Association of North Dakota and the Judicial Council of North Dakota was (((designated))) appointed in (((October))) 1967 to prepare and submit proposed Rules of Criminal Procedure, and (((thereafter members of the two bodies were duly appointed and have functioned as such a committee; and
WHEREAS, said))) the Committee(((has now))) thereafter conducted and completed its study;
NOW THEREFORE, The (((members of the aforesaid))) Joint Committee (((hereby))) respectfully submits the attached proposed North Dakota Rules of Criminal Procedure to the Supreme Court of North Dakota and petitions (((said))) the Court to commence proceedings for the adoption and promulgation of the annexed Rules of Criminal Procedure for North Dakota courts, pursuant to Sections 27-02-11 and 27-02-13, N.D.C.C.
Dated This _________________ day of _______________________, 1973.
Motion was seconded by Mr. Shaft and CARRIED.
It is noted that Mr. Sand expressed the opinion that the "Whereas" phrase is archaic, but declines to move to strike the language.
ORDER OF THE SUPREME COURT
The Order of the Supreme Court was read by John Shaft.
Judge Burdick MOVED to amend the text as follows;
WHEREAS, a Joint Committee of the (((North-Dakota))) State Bar Association of North Dakota and the Judicial Council of North Dakota was (((designated))) appointed to prepare proposed Rules of Criminal Procedure; and
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WHEREAS, (((said))) the Committee has prepared (((said))) proposed Rules of Criminal Procedure and submitted them for consideration pursuant to the provisions of Chapter 27-02 of the North Dakota Century Code;
(((NOW THEREFORE)))
IT IS HEREBY ORDERED, That proceedings necessary (((to))) forthe adoption and promulgation of said Rules be commenced forthwith (((in accordance with the requirements of))) pursuant toSections 27-02-11 and 27-02-13, N.D.C.C.
STATE OF NORTH DAKOTA )
) ss.
IN THE SUPREME COURT )
Motion seconded by John Graham and CARRIED.
NOTICE OF INTENTION
The Notice of Intention to Promulgate Rules of Criminal Procedure for the Courts of North Dakota was read by Judge Smith.
Judge Burdick MOVED to amend the Notice of Intention as follows;
Notice is hereby given that:
1. (((That))) The Supreme Court of (((the-State of))) North Dakota intends to promulgate Rules of Criminal Procedure governing the Courts of (((the))) this State (((of North Dakota.)));
2. (((That))) A copy of (((said))) proposed Rules of Criminal Procedure has been filed in the office of the Clerk of the Supreme Court and a certified copy of said proposed Rules of Criminal Procedure has been filed in the office of the Clerk of the District Court in each county of the State(((.)));
3. (((That))) A hearing will be (((had))) held in the Supreme Court upon the question of the adoption of said Rules in the Court Room of the Supreme Court in the State Capitol (((Building))) at Bismarck, North Dakota, on the _____ day of ____________, 1973, at the hour of 10 A.M. (((on the said day))); (((that upon said hearing the Supreme Court will afford))) at which time any person (((interested an opportunity to))) may appear and be heard with reference to the adoption of such Rules (((.))); and
4. (((That))) A copy of said Proposed Rules of Criminal Procedure is hereto attached and by this reference made a part hereof.
Mr. Graham seconded the motion to amend. Motion CARRIED.
The RECORD notes the arrival of Judge Ilvedson.
TIME TABLE FOR LAWYERS IN NORTH DAKOTA CRIMINAL CASES
Mr. Sand read the Time Table. Mr. Graham cross-checked the times with the Rules. Mr. Vogel cross-checked the times with the Federal Rules.
Judge Burdick MOVED to omit the date on line 2, and to amend the first sentence as follows;
"This table indicates the time limitations for taking (((the))) various steps in a criminal action or proceeding (((as provided by))) underthe North Dakota Rules of Criminal Procedure."
Motion CARRIED.
It was agreed to strike "the" in line 1 under APPEAL, By defendant and to insert "the" at the end of line 2 under APPEAL, By prosecution.
Mr. Sand suggested changing the title "APPEAL" to read "APPEAL TO DISTRICT COURT OR COUNTY COURT WITH INCREASED JURISDICTION".
Judge Burdick MOVED to add before the paragraph on APPEAL, the language "APPEALS to Supreme Court See N.D.R.App.P.", and to amend the title
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'APPEALS' as suggested by Mr. Sand. Judge Smith seconded; motion CARRIED.
The second page of the Time Table was amended as follows: strike the article "the" at the end of line 3, begin lines 10 and 12 with "Atany time...".
The RECORD notes the arrival of Judge Muggli.
Mr. Graham MOVED to amend "DEFENSES and objections", on the third page of the Time Table, as follows;
DEFENSES and objections
Alibi defense: Within time for making of pretrial motions. Crim. R. 12.1.
"Insanity" defense: Within time for making of pretrial motions. Crim. R. 12.2.
Pretrial motions: Defenses and objections which (((may be, and those which))) must be(((,))) raised before trial (((,see))). Crim. R. 12(b)(1),(b)(2), (b)(3), (b)(4), (b)(5) (((; 12.1; 12.2))).
Second by Judge Burdick. Motion CARRIED.
fourth page:
Judge Burdick MOVED to strike the word "later" in line 6. Motion DIED for lack of second.
Under DEPOSITIONS, Taking of, it was agreed to strike "the" in line 2.
Mr. Vogel MOVED to add the following under 'DISCOVERY':
Statements by prosecution witness: After witness has testified on direct examination at trial. Crim. R. 16(h).
Motion seconded by Mr. Graham and CARRIED.
It was agreed to strike the article "the" in line 1 under ENLARGEMENT of time, Motion for judgment of acquittal.
A typographical error was noted in Rule 26.1, which should read "hearing or trial".
fifth page:
John Graham MOVED to amend the first paragraph as follows;
"No enlargement (((of-the-7-day-period))) except as (((fixed))) provided by (((the court within that time. Crim. R. 33, 45(b)))) Rule 33. Crim. R. 45(b)."
Judge Burdick seconded the motion; motion CARRIED.
It was agreed to strike the article "the" in line 1 of ¶2.
Paragraph 3 was amended as follows: "Stay of execution permittedpending review(((,see))). Crim. R. 38(a)."
It was agreed to strike the article "the" in lines 2 and 5 of ¶4, and to amend ¶5 to read "... to be as cited in the notice."
The 'GRAND jury' paragraph was amended as follows; "(((Crim. R. 6 preserved in blank,))) See Ch. 29-10.1, N.D.C.C."
'HOLIDAYS' was amended as follows; "(((For))) Exclusion in computation of time (((,see))). Crim. R. 45 (a)."
It was agreed to strike the article "the" line 4 under INFORMATION, Amendment.
sixth page:
It was noted that ¶2, line 4, should correctly cite "Crim. R. 30(b)."
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Paragraph 3 was amended as follows;
Instructions (((shall be))) deemed excepted to unless the court, before instructing (((the jurors))) jury, submits to counsel (((the))) proposed written instructions ((which it proposes to give))) and asks for exceptions to be noted. Crim. R. 30(c).
It was agreed to strike in ¶5, lines 5 and 7, the word "those", and in line 10, the words "in his discretion".
The language of the last line was changed to read "See Crim. R. 29."
seventh page:
It was agreed to strike the article "the" in ¶1, line 2; in ¶2, line 2; in ¶3, line 3; and in ¶4, line 2. It was also agreed to strike the word "such" in ¶4, line 3; and to strike the article "the" in lines 4 and 5 of ¶5.
eighth page:
Paragraph 1 was amended to read "...and within 30 days afterdiscovery of facts upon which...".
Mr. Sand MOVED to change the language of ¶2 to read "See Rule 12." Judge Smith seconded. Motion CARRIED, with one dissenting vote.
Mr. Travis suggested amendment of line 5 of ¶3 to read "...an Omnibus hearing which allows reasonable time...". Paragraph 3 was further amended by striking the article "a" in line 1, striking the word "the" in lines 2 and 4, and amending the last line to read "See Crim. R. 17.1(a)."
Judge Ilvedson MOVED to reconsider action on 'OBJECTIONS', to return to the original language. Judge Pearce seconded.
Mr. Graham MOVED to add to the original language "See Rule 12."Mr. Sand seconded. The motion CARRIED. The paragraph reads "See "DEFENSES and objections" and Rule 12."
The reference line of ¶5 was amended to read as follows: "Crim. R. 5(c)(2). See also Rule 5.1."
It was agreed to strike the article "the" in line 1 of ¶6.
Judge Burdick MOVED to amend 'PRETRIAL conferences' as follows: "May be held (((subsequent to or in lieu of the Omnibus hearing))) at any time before trial." Motion CARRIED unanimously.
ninth page:
It was agreed to strike the article "the" in lines 5 and 9 of ¶1, in lines 1 and 2 of ¶4, and in line 1 of ¶5.
Paragraph 3 was amended to read "Exclusion in computation of time. Crim. R. 45(a)."
The reference line of paragraph 4 was amended to read "Crim. R. 41(c)."
tenth page.
Paragraph 4 was amended as follows: "At (((the))) request of (((the))) prosecuting attorney made while an indictment, information, or complaint is pending, If summons...".
Paragraph 7 was amended as follows: "(((For))) Exclusion in computation of time (((see))). Crim. R. 45(a)."
eleventh page:
The reference line in paragraph 3 was amended to read "Crim. R. 9(c)(1)."
Paragraph 5 was amended as follows: "At (((the))) request of (((the))) prosecuting attorney made while an indictment, information, or complaint is pending. . .".
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The reference line of paragraph 6 was amended to read "Crim. R. 4(c)(1), 9(c)(1)."
Meeting RECESSED at 5:15 p.m.
Wednesday, April 25
Meeting was called to order at 9:05 a.m. by Judge Erickstad, Chairman.
Members Present:
Judge Erickstad, Judge Burdick, Mr. Graham, Judge Ilvedson, Judge Muggli, Judge Murray, Judge Pearce, Mr. Sand, Mr. Shaft, Judge Smith, and Mr. Persinger.
Staff Present:
Mr. Travis, Mr. Jacobson, Ms. Fischer
TABLE OF RULES
The work of the staff was relied upon, however it was noted that the language for Rules 39 and 40 had been amended to read "Reserved for future use".
The following changes were made on the sheet listing Committee members responsible for the Rules;
Rule 5 -- add Judge Pearce's name
Rule 6, Grand Jury -- substitute Mr. Sand's name
Rule 11 -- add Mr. Vogel's name
Rule 23 -- add Judge Pearce's name
Rule 24.1 -- strike Mr. Graham's name due to omission of the proposed rule.
Omit reference to Rule 29.1, which was proposed but never adopted.
Change the language of Rules 39 and 40 to read "Reserved for future use" and strike Judge Glaser's name following Rule 40.
Rule 44 -- add Judge Pearce's name
Table of Statutes Affected
The Table of Statutes Affected was not reviewed in detail.
INDEX
It was agreed to rely on the work of the staff to follow changes made in the Rules.
Judge Murray noted the listing of "Columbus Day" in the index and stated that it should be listed as "Discovery Day".
Judge Burdick suggested that the headings, listed in all-caps, should be set out three spaces for readability. Judge Erickstad noted that the index is a temporary printing and to prevent retyping at this time, he suggested that Judge Burdick make such a suggestion by letter before final publication.
FORMS
The forms were the next item to be considered. It was noted that they are a work product of Judge Burdick and the staff.
FORM 1
Judge Burdick suggested style changes, which were accepted by the Committee.
Judge Smith suggested "...(charges) of his own knowledge".
With Judge Burdick objecting, the language was changed to read "...constituting the offense based upon personal knowledge.)"
Judge Ilvedson read syllabus 5. of State v. Erdman, 170 N.W.2d 872 (N.D. 1969), as follows;
5. Where a warrant of arrest is issued by a magistrate without his making inquiry of the complaining witness or any other witness whether such person has a reasonable
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ground to believe that an offense has been committed and that the person to be arrested has committed it, and where the complaint presented to the magistrate contains no affirmative allegations by the one signing the complaint that he has personal knowledge of the matters set out therein, and where the complaint does not state any grounds for the belief by the complaining witness than an offense has been committed by the person to be arrested, and where such magistrate has no facts upon which to base a finding of probable cause, the warrant is invalid.
Judge Burdick noted that he had paraphrased the form of the Complaint from the Federal form, with Mr. Travis's assistance.
Judge Ilvedson objected to the change, above.
Discussion followed.
Judge Burdick MOVED to adopt Form 1, Complaint, as amended.Judge Smith seconded. Motion CARRIED.
The RECORD notes the arrival of Mr. Persinger.
Chairman Erickstad suggested that Judge Burdick be entrusted to finalize the remaining forms, taking into consideration the suggestions of the Committee. Judges Muggli and Ilvedson expressed agreement with that and Judge Muggli MOVED to place revision of the remaining forms, to be consistent with Committee suggestions, with Judge Burdick. Second by Judge Ilvedson; CARRIED.
CONSIDERATION OF RULES
RULE 1 -- no change
RULE 2
To be consistent with Rule 1, it was suggested the words "action or" in line 2 be deleted. Mr. Sand suggested the Minutes reflect that the reason for deleting the words "action or" is that in comparing this language to the Federal Rule it was noted that the term is redundant.
Judge Burdick MOVED to strike the words "action or" in line 2.Second by Mr. Sand. Motion CARRIED.
RULE 3 -- no change
Judge Burdick MOVED to approve Rule 3 as typed for final printing. Mr. Persinger seconded. Motion CARRIED.
RULE 4 -- no change
It was suggested that 4(a)(2) Summons be amended as follows: "A summons (((may))) shall issue...". No motion.
Mr. Shaft MOVED to adopt Rule 4 and the Explanatory Note as typed for final printing. Second by Judge Ilvedson. Motion CARRIED.
RULE 5 -- no change
Judge Smith, author, referred to subdivision (b), statement of rights in first appearance. He explained that this is in addition to Rule 46. No recommendations for change.
Judge Smith MOVED to adopt Rule 5 and the Explanatory Note.Mr. Persinger seconded. CARRIED.
RULE 5.1 -- no change
Judge Smith MOVED to adopt Rule 5.1. Mr. Sand seconded; motion CARRIED.
RULE 6
Mr. Sand suggested Rule 6 read, "This rule is reserved for reference."
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Judge Burdick suggested strike "This rule is" and add the words "and possible future use". It was MOVED to amend Rule 6 to read "Reserved for reference and possible future use." Mr. Vogel seconded. Motion CARRIED.
Explanatory Note: Judge Erickstad suggested adding to the last sentence, "The 1971 Legislature upon recommendation of this Committee enacted..." Mr. Sand so MOVED. Second by Judge Muggli and motion CARRIED.
RULE 7 -- no change
Judge Ilvedson MOVED to adopt Rule 7 and Explanatory Note as typed for final printing. Second by Judge Muggli. Motion CARRIED.
RULE 8 -- no change
Mr. Vogel MOVED to adopt Rule 8. Judge Ilvedson seconded.
Judge Burdick objected to the word "common" in line 5 of subdivision (a) and MOVED to amend 8(a) to read "...parts of a single scheme or plan." No second. It was noted that the ABA Standards use the word "single" (see page 8 of Comparative Analysis). Judge Burdick added that the special committee of the National Conference of Commissioners on Uniform State Law feel it should be "single", not "common". Judge Muggli and Mr. Sand stated they prefer to follow the language of the Federal Rule, which reads "common".
The motion to adopt without change CARRIED, with the dissenting vote of Judge Burdick.
RULE 9 -- no change
Judge Muggli MOVED to reaffirm previous adoption of Rule 9. Mr. Persinger seconded; the motion CARRIED.
RULE 10 -- no change
In the absence of Judge Murray, sponsor, Judge Ilvedson MOVED to adopt Rule 10 as it is presented for printing. Mr. Persinger and Mr. Sand seconded; motion CARRIED.
RULE 11
Judge Smith noted the recommendation of the staff to change the word "should" to "shall" in subdivision (f). Judge Smith did not agree with the change to make it mandatory. The Federal Rule reads "shall".
Judge Burdick proposed the following language, couched in terms of acceptance of plea of guilty not entry of judgment.
"The court may defer acceptance of the plea until the court is satisfied that there is a factual basis for the offense to which the defendant pleads."
. . .that has been read to him but that there is a factual basis to the offense to which he pleads."
Judge Erickstad said that presents a problem that the record goes on and on, with nobody accepting a plea. There was much discussion on the subject. Judge Burdick's suggested language would change the whole concept so that there is no acceptance of the plea. Checked discussion of the ABA Standards.
Judge Burdick stated he feels subdivision (f) is misleading. He MOVED to insert after "judgment" in line 2. the words "or order".Judge Ilvedson seconded. Judge Smith, author, accepted the proposed change.
Judge Muggli placed in issue the case of North Caroline v. Alford, 91 S.Ct. Rep., and said that he wished to review it over the noon hour and report to the Committee.
Committee RECESSED for lunch. RECONVENED at 1:30 p.m. with the following members present: Judge Erickstad, Judge Burdick, Mr. Graham, Judge Ilvedson, Judge Muggli, Judge Pearce, Mr. Persinger, Mr. Sand, Mr. Shaft, Judge Smith, Mr. Vogel. Judge Murray arrived 2:00 p.m. Judge Glaser arrived 2:10 p.m.
Staff members Mr. Travis, Mr. Jacobson, and Ms. Fischer were present.
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Judge Muggli reported he had checked the Alford case and found nothing relevant.
Judge Burdick AMENDED his motion to read "... enter a judgment or dispositional order upon such plea...". Motion CARRIED without objection.
Judge Burdick MOVED to approve Rule 11 as amended. John Graham seconded. Mr. Graham made reference to subsection 11(e)(5). Judge Burdick suggested subdivision (d), line 6, should read "...results from plea discussions...", rather than "prior discussions".
Motion to adopt CARRIED.
RECONSIDERATION OF TIME TABLE FOR LAWYERS
Mr. Graham MOVED to reconsider action by which the Time Table was approved. Motion was seconded and CARRIED.
He MOVED to add after OMNIBUS hearing, the section
PLEA agreement Court to be notified at arraignment or at other time as fixed by the court. Crim. R. 11(e)(5).
Motion was seconded by Judge Burdick and CARRIED.
RULE 12 -- no change
John Shaft MOVED to adopt Rule 12 and the Explanatory Note as presented for final printing. Second by John Graham.
Judge Burdick MOVED to amend line 2 of subdivision (a) to read "...county court with increased jurisdiction..." No second.
Motion to adopt CARRIED unanimously.
RULE 12.1
Mr. Shaft MOVED to adopt Rule 12.1 and the Explanatory Note as prepared for printing. Second by Mr. Graham. Mr. Graham noted an apostrophe should be added to the word "defendant's" in line 4 of subdivision (b) and in line 3 of subdivision (c).
Judge Burdick MOVED to amend subdivision (b) to read "upon whom the prosecution intends to rely...". Mr. Shaft seconded; the motion CARRIED.
Vote was taken on the motion to adopt. CARRIED.
RULE 12.2 -- no change
Mr. Shaft MOVED to adopt Rule 12.2 and Explanatory Note as proposed. Mr. Graham seconded the motion. There was discussion re origin of the language "mental state", as used in subdivision (b). The motion to adopt CARRIED without objection.
RULE 13 -- no change
Mr. Vogel MOVED to adopt Rule 13 and Explanatory Note as prepared for the printer. Mr. Graham seconded. The motion CARRIED unanimously.
RULE 14 -- no change
In the absence of Judge Glaser, sponsor for Rule 14, Mr. Vogel MOVED to adopt Rule 14. Judge Muggli seconded; the motion CARRIED.
RULE 15 -- no change
Judge Ilvedson MOVED to adopt Rule 15. Mr. Graham seconded.
Judge Burdick suggested that subdivision (e), on use of prior statements, could be expanded to include a provision that it can be used as substantive evidence if the declarant is available for cross-examination at the trial. He suggested the concept of substantive evidence be introduced; he then stated that he is satisfied with the Rule.
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The motion to adopt CARRIED unanimously.
The RECORD notes the arrival of Judge Murray.
RULE 16 -- no change
Judge Murray MOVED to adopt Rule 16. Seconded by Mr. Persinger. Motion CARRIED unanimously.
RULE 17 -- no change
Judge Muggli stated as author that he is satisfied with the Rule and he MOVED to adopt Rule 17. Mr. Persinger seconded.
Judge Burdick noted the language "not less than 18 years of age" in subdivision (e) and suggested instead "at least 18 years...". It was noted that there is precedent in the Federal Rule for the language "not less than 18 years of age".
The motion to adopt CARRIED.
The RECORD notes the arrival of Judge Glaser.
RULE 17.1
Judge Muggli noted the staff's recommended change for subsection (b)(5): "A (((verbatim))) form record of the Omnibus Hearing shall be made and preserved." Judge Muggli referred to the ABA Standard, which states "verbatim record" and "form" (see page 24 of ABA Comparative Analysis).
Judge Burdick suggested the following amendment: "A verbatim record or a summary memorandum of the Omnibus Hearing..." and he so MOVED.
Judge Muggli suggested including the language contained in parenthesis from the Standard, "(dictated or written on an appropriate court-established form)".
Judge Muggli MOVED to substitute the language of the ABA Standard Relating to Discovery and Procedure Before Trial, §5.3,(e).
A record should be made of all proceedings at the hearing; such a record may be either a verbatim record, or a summary memorandum (dictated or written on an appropriate court-established form) indicating disclosures made, rulings and orders of the court, stipulations, and any other matters determined or pending.
in lieu of (b)(5). Judge Ilvedson seconded the motion and the motion CARRIED unanimously.
Judge Muggli MOVED to adopt Rule 17.1 as amended and the Explanatory Notes. Motion CARRIED.
RULE 18 -- no change
Mr. Sand MOVED to adopt Rule 18 and Explanatory Note, with the minor style changes as shown in the staff's edited copy. Motion was seconded and CARRIED.
RULE 19
Mr. Sand MOVED to adopt Rule 19. Judge Pearce seconded.
Judge Burdick suggested that subdivision (a), line 4, should be amended as follows: "..to select another district judge...". Mr. Sand had no objection to the change, WITHDREW his first motion, and MOVED to insert the word "district" before "judge" in line 4 of subdivision (a). Second by Judge Ilvedson.
Mr. Vogel asked what the word "presiding" means in 19(a), "...the presiding judge of the District Court...". Mr. Sand explained it is the one who would be conducting court in that county.
The motion to add the word "district" CARRIED.
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Mr. Sand MOVED to adopt Rule 19 as amended. Judge Pearce seconded; the motion CARRIED.
RULE 20 -- no change
Mr. Sand MOVED to adopt Rule 20 and the Explanatory Note as edited for printing. Mr. Persinger seconded. Motion CARRIED.
RULE 21
Mr. Persinger, author, noted that the staff recommends amending the title of subdivision (a) to read "For Prejudice in the County or Municipality." He MOVED to make the above change and also to insert "or municipality" in
line 2 before the word "whether". Judge Pearce seconded. The motion CARRIED.
re Rule 19
Mr. Sand noted for the RECORD that Rule 19 was amended to include the word "district" for the purpose that the Rule applies only to transfer to another district judge within its judicial district.
RULE 22 -- no change
Mr. Persinger MOVED to adopt Rule 22 and the Explanatory Note.Judge Pearce seconded. The motion CARRIED unanimously.
RULE 23 -- no change
Judge Glaser MOVED to adopt Rule 23 and the Explanatory Note, with the staff's suggested style changes. Judge Pearce seconded.
Judge Burdick questioned the requirement of consent of the prosecuting attorney, in subdivision (a). The applicability of Singer v. United States, 85 S.Ct. 783 (1965) was questioned and the case was reviewed. Judge Burdick MOVED to delete from the last line of subdivision (a) the language "and consent of the prosecuting attorney." Mr. Shaft seconded the motion. Vote showed 2 in favor and 9 opposed. The motion was DEFEATED.
The motion to adopt Rule 23 CARRIED, with one opposed.
It was the Committee's wish that the RECORD show that Mr. Vogel represents a number of REC cooperatives.
RULE 24 -- no change
Mr. Vogel MOVED to adopt Rule 24 and Explanatory Note with the proposed changes in form. Judge Pearce seconded the motion; CARRIED unanimously.
RULE 24.1 -- no change
Judge Burdick MOVED to omit Rule 24.1. Seconded by Judge Ilvedson. Mr. Travis explained that the statutes would then be unavailable as an aid. Vote showed 3 in favor of the motion to delete, 4 opposed, 2 abstaining from vote. The motion to delete FAILED.
Judge Ilvedson MOVED to retain Rule 24.1 as presented. Judge Pearce seconded and the motion CARRIED, with one opposed.
RULE 25 -- no change
It was noted that the word "familiarized" was misspelled in subdivision (a).
Mr. Shaft MOVED to adopt Rule 25. Judge Pearce seconded. Motion CARRIED.
RULE 26 -- no change
Judge Murray MOVED to adopt Rule 26 and the Explanatory Note with the form changes. Second by Judge Pearce; CARRIED.
RULE 26.1
Mr. Persinger MOVED to adopt Rule 26.1 and Explanatory Note as prepared by the staff. Judge Murray seconded. CARRIED.
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A typographical error is noted in line 4, which should read "or trial".
Judge Glaser noted that the proposed N.D. Rules of Evidence which the State Bar Association is drafting may have some comparative work.
Judge Smith referred to use of the word "cite" in lines 2 and 6 and asked whether it is intended to mean "set out in full", not just the citation of a number. Judge Burdick suggested using the word recite in those two places. Judge Smith MOVED to reconsider Rule 26.1 to substitute the word "recite". Mr. Persinger seconded. The motion CARRIED.
Mr. Persinger MOVED to readopt Rule 26.1. Judge Pearce seconded. Motion CARRIED.
RULE 27 -- no change
Judge Muggli MOVED adoption of Rule 27. Seconded by Judge Pearce and Mr. Vogel. CARRIED.
RULE 28 -- no change
Mr. Sand MOVED to adopt Rule 28 and Explanatory Note with the form changes recommended by the staff. Judge Pearce seconded. Motion CARRIED.
RULE 29 -- no change
Mr. Sand said he agreed with the staff changes in the Explanatory Note and MOVED to adopt Rule 29. Judge Pearce seconded. Motion CARRIED.
In reference to the first sentence of subdivision (a), which reads;
The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment, information, or complaint after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.",
Judge Glaser said the Rule allows something which you cannot now do -- it is a departure from the present North Dakota practice. He wondered whether the state should have any recourse from that type of action. Discussion followed. Judges Burdick and Pearce stated they support the Rule. The Committee agreed with the procedure in (a) and there was no change.
Judge Smith suggested the Explanatory Note for 29(c) be expanded. Mr. Travis noted that the explanatory note prepared by the staff had been redrafted at the October, 1972 meeting.
RULE 30
Judge Ilvedson MOVED to adopt Rule 30. Judge Pearce seconded.
The Committee referred to Section 33-12-20, NDCC (Drawing of jury-Manner of conducting trial.)
Except as otherwise prescribed by this chapter, the jury shall be drawn and the trial shall be conducted in the manner prescribed in chapter 33-07.
Chapter 33-07, Trial of Civil Actions. It was noted that Section 33-07-17 is superseded.
Judge Burdick MOVED to amend subdivision (d) to read as follows;
(d) Courts Not of Record.
This Rule does not apply to county justice courts or municipal courts, but if a county justice court is presided over by a person learned in the law he may in his discretion give instructions as provided in this Rule.
Seconded by Judge Pearce. Motion to amend CARRIED unanimously.
Judge Ilvedson MOVED to adopt Rule 30 as amended and the Explanatory Note with its form changes. Judge Pearce seconded. Motion CARRIED.
RULE 31
Judge Smith MOVED to adopt Rule 31. Mr. Graham seconded. Judge Burdick MOVED to amend the title of subdivision (c) to read "Conviction of Lesser Offense". Second by Judge Ilvedson. Motion CARRIED, with one opposed.
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Judge Smith MOVED to adopt Rule 31. Second by Judge Ilvedson. Motion CARRIED.
RULE 32
Mr. Shaft MOVED to adopt Rule 32 and the Explanatory Note.Judge Burdick noted the order of 32(c)(3)(iii), which now reads "Any material ... also shall be disclosed...". He recommended it read "... shall also be disclosed...". Mr. Shaft included the suggestion in his MOTION. Motion CARRIED.
Mr. Graham noted for the RECORD the differences between Rule 32 and the Criminal Code. The Criminal Code mandates that all sentences imposed be accompanied by a written order. He referred to the comparison prepared by the staff at the February, 1973 meeting.
RULE 33 -- no change
Judge Ilvedson MOVED to adopt Rule 33 and Explanatory Note with those form changes suggested by the staff. Judge Pearce seconded.
Judge Burdick MOVED to amend Rule 33 for style, as follows;
(((When))) If affidavits are presented to the court in support of a motion for new trial, (((the court, when the))) affiants who are residents of this state, may be compelled (((the personal attendance before it))) by the court, and they may be examined and cross-examined under oath, touching the matters set forth in their affidavits.
Judge Murray seconded the motion. A vote showed the motion FAILED.
Judge Burdick MOVED to amend line 12 to read "appeal is taken the court...". Second by Mr. Graham. Discussion followed and the motion was WITHDRAWN.
The motion to adopt CARRIED.
Mr. Graham noted the bracketed material after Cross References. It will be deleted from the final copy.
RULE 34
Mr. Sand MOVED to adopt Rule 34 and the Explanatory Note with those style changes suggested by the staff. Mr. Graham seconded.
Mr. Graham noted line 7 of ¶1, the word "offenses" should read "grounds". Judge Pearce MOVED to amend that sentence to read "These grounds are the non-waivable defenses..." Mr. Graham seconded. The motion CARRIED without objection.
Judge Glaser asked the nature of the Rule in relation to an issue of jurisdictional defect. The motion to adopt Rule 34 as amended CARRIED.
RULE 35 -- no change
Mr. Persinger suggested striking the comma in line 8 of the Rule and MOVED to adopt Rule 35 and Explanatory Note with staff's suggested changes. Motion was seconded. Judge Burdick spoke against deleting the comma; there was agreement that it should remain. The motion to adopt CARRIED without objection.
RULE 36 -- no change
Mr. Persinger MOVED to adopt Rule 36 and Explanatory Note with those changes recommended by the staff. Judge Pearce and Mr. Sand seconded. Motion CARRIED.
RULE 37 -- no change
Mr. Sand MOVED to adopt Rule 37 and Explanatory Note.Seconded by Judge Ilvedson. Motion CARRIED.
RULE 38 -- no change
Judge Muggli stated the staff changes in the Explanatory Note are acceptable and MOVED to adopt Rule 38 and Explanatory Note.Judge Pearce
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seconded. Mr. Graham noted that (a)(1), the death penalty, will be irrelevant after 1975 due to substantive law. The motion to adopt CARRIED without objection.
RULES 39 and 40 -- should be shown as "Reserved for future use". Judge Pearce MOVED to insert a page stating the above. Mr. Graham seconded. CARRIED.
RULE 41
Judge Smith MOVED to adopt Rule 41 and the Explanatory Note.Judge Pearce seconded.
Judge Burdick MOVED to amend subdivision (a), last line, to include the language, ", upon request of a peace officer or a prosecuting attorney serving such jurisdiction." Judge Erickstad referred to Federal Rule 41(a). The motion to amend DIED for lack of a second.
Judge Burdick MOVED to amend line 6 of subdivision (c) to track the Federal language, as follows: "...naming or describing with particularity the person or place to be searched." Second by Judge Pearce. Vote showed 7 in favor, 4 opposed. The motion to amend CARRIED.
Motion to adopt Rule 41 CARRIED unanimously.
RULE 42
Judge Murray MOVED to adopt Rule 42 and Explanatory Note with those minor style changes in the Note. Judge Pearce seconded. Judge Burdick noted the addition of two commas in subdivision (b). CARRIED.
RULE 43 -- no change
Judge Ilvedson MOVED to adopt Rule 43 and Note with the staff's style recommendations. Judge Pearce seconded.
Judge Burdick suggested subdivision (a) should read "The defendant is entitled to be present...". Mr. Graham noted the reference in (b)(1) to noncapital cases".
Motion to adopt CARRIED.
RULE 44
Judge Ilvedson MOVED to adopt Rule 44 and Note with changes.Second by Mr. Vogel. Judge Burdick suggested "until it has been determined that punishment upon conviction...". Judge Erickstad suggested delete in line 7 the words "in all nonfelony cases". The consensus of opinion seemed to be against amendments.
Judge Burdick MOVED to substitute the word "sentence" for "punishment" in line 8. Seconded by Judge Pearce, Judge Ilvedson, and Mr. Sand.
Judge Ilvedson MOVED to adopt Rule 44 as amended. Second by Mr. Sand. Motion CARRIED unanimously.
RULE 45
Mr. Vogel MOVED to adopt Rule 45. Judge Pearce seconded. Mr. Sand noted subdivision (b), line 9 should read "...under Rules 29, 33, 34, 35, and 37(a)(2), except to..." Motion CARRIED unanimously.
RULE 46
Mr. Persinger MOVED to adopt Rule 46. Judge Pearce seconded.
Judge Smith suggested amendment to subdivision (b). He MOVED to delete 46(b)(1) and (2). Mr. Graham seconded. For the RECORD, the reason for motion is that the appeal is based on portions of (a)(1)(iv) and (v) amended to strike written order -- so eliminated necessity for making such order. Judge Burdick asked if there is anything in here that prevents district court from modifying it. Judge Smith said not at all. Judge Burdick asked to check the ABA Standards. Judge Burdick suggested caption of subdivision (b) should be "Amendment of Conditions of Release.", and strike paragraph (2).
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Judge Smith agreed to include in his MOTION to amend to change the word "such" in line 6 to "the latter". He also agreed to include in the title of (b) ". . . Release by Other Magistrate." Motion CARRIED.
The Explanatory Note for subsection (b)(1) now needed revision. Mr. Graham MOVED to amend that paragraph to read:
"Subdivision (b) provides a person with a right to reapply for a change of conditions of release to a magistrate other than the magistrate who imposed the original conditions."
Judge Smith seconded the motion; motion CARRIED.
Judge Smith MOVED to adopt Rule 46 as amended and the Explanatory Note as amended. Judge Pearce seconded. Motion CARRIED.
RECESSED at 5:15 p.m.
Thursday, April 26
Meeting was called to order at 9:20 a.m. by Judge Erickstad, Chairman. The following members were present: Judge Erickstad, Judge Burdick, Mr. Graham, Judge Muggli, Judge Murray, Judge Pearce, Mr. Persinger, Mr. Sand, Mr. Shaft, Judge Smith, Mr. Vogel. Judge Glaser arrived at 11:00 a.m.
The following staff were present: Mr. Travis, Mr. Jacobson, Ms. Fischer.
RULE 47
Paul Sand MOVED to adopt Rule 47 and the Explanatory Note with the corrections of the staff. John Graham seconded.
Judge Burdick asked if it parallels the Federal Rule. Judge Burdick MOVED to delete the words "shall" in lines 2 and 3 of the Rule.Judge Smith seconded. The motion CARRIED, with 9 in favor.
Motion to adopt CARRIED.
RULE 48
John Shaft MOVED to adopt Rule 48 and the Explanatory Note.Second by Paul Sand.
John Graham asked why line 3 of subdivision (a) states "supported or accompanied". Judge Burdick suggested he would like to delete the words "in open court" in line 2 because it is not necessary that it be in open court. It was noted that the language follows the Colorado Rules, which state "supported or accompanied" and "in open court". The ABA Standards on dismissal were checked. Mr. Vogel expressed agreement with Judge Burdick.
Judge Burdick also took exception to the language "consent andapproval." Judge Burdick said that the word "unless" in line 2 should be "except". Judge Erickstad read from Rule 48 in Moore's Federal Practice. It was suggested that the language of the Federal Rule be adopted for (a);
"The [prosecuting attorney] may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant."
Judge Burdick said he would revise only the first sentence of subdivision (a), also strike the words "or accompanied" in the next sentence. Judge Muggli stated he was in favor of leaving the Rule as presented before the Committee. Judge Erickstad suggested that if there is a motion to amend, the Rule should follow either the Colorado Rule or the Federal Rule.
Judge Burdick MOVED to amend subdivision (a) as follows;
substitute "except" for "unless" in line 2,
strike "in open court" in line 2,
strike "particular" in line 5.
Mr. Vogel seconded the motion to amend. Vote was taken and the motion CARRIED unanimously. The amended paragraph reads as follows;
(a) By Prosecuting Attorney.
No criminal case pending in any court shall be dismissed by any prosecuting attorney upon motion with the court's approval. Such a motion shall be supported by a written
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statement concisely stating the reasons for the motion. The statement shall be filed with the record of the case and be open to public inspection. A dismissal may not be ordered during the trial without the defendant's consent.
Judge Pearce referred to the language in subdivision (b) which reads "... the court may dismiss the prosecution." He said that a prosecution is not "dismissed" -- the charging document is dismissed, the prosecution may be "terminated". Judge Pearce MOVED to strike the word "prosecution" and insert "indictment, information or complaint". Seconded by John Graham. Mr. Graham objected to such change and suggested instead substituting the word "terminate" in lieu of "dismiss". Judge Erickstad questioned the legal significance of the word "terminate". Judge Pearce said subdivision (b) is comparable with the Federal Rule.
Judge Burdick suggested striking the language "...in presenting the charge to a grand jury or". Mr. Sand MOVED to further amend subdivision (b) by striking the language "in presenting...jury or".Judge Smith seconded Mr. Sand's motion to amend; the motion CARRIED unanimously.
Mr. Sand suggested changing the word "is" to "was" in line 4 of subdivision (b). No action.
There was discussion re Judge Pearce's motion to amend. The motion CARRIED, with two dissenting votes.
Mr. Shaft MOVED to adopt Rule 48 as amended. Second by Judge Pearce. Motion CARRIED unanimously.
Explanatory Note:
Mr. Graham noted that the Explanatory Note needs revision. Judge Burdick MOVED to amend the last line of ¶1 to read "...the court for delay in prosecution under subdivision (b)." Motion CARRIED.
Mr. Graham MOVED to amend the first sentence of the paragraph to read "... is an adaptation of the language of Federal Rule 48(b)."Second by Judge Burdick. CARRIED.
Judge Smith MOVED to amend the second sentence of ¶2 to read;
"Those requirements are: (1) that a motion must be made and supported by a written statement concisely stating the reasons for the motion; (2) that the court must give its approval; and (3) that the defendant must consent to the dismissal if trial has begun."
Motion was seconded by John Graham and CARRIED.
Mr. Shaft MOVED to amend line 3 of ¶4 by striking the language "in presenting the charge against him to a grand jury or." Motion was seconded. It was noted that the first word in line 4 should be "or".
Judge Pearce read Section 29-10.1-21 from the Code (pocket part). General duties of grand jury. -- The grand jury shall inquire into the cause of detention of every person imprisoned in the jail of the county against whom neither a criminal complaint nor information has been filed, or who has not had or waived a preliminary examination, and into all public offenses committed or triable in the county, and if the evidence so warrants, shall present them to the court by written indictment. As to any offense committed while the grand jury is in session the state's attorney or prosecutor may proceed with a preliminary examination or the filing of an information, as provided for by law, and prosecute the charge, and, under such conditions, the grand jury shall not be required to inquire into such offense. The presentment of an indictment against a person does not preclude the prosecution of such person for the same offense upon a criminal complaint or information previously filed with the court.
He questioned whether the deletion should be made in subdivision (b) of the words "in presenting the charge to a grand jury or".
Mr. Vogel suggested the language, "if there is unnecessary delay in instituting the prosecution by filing." Judge Erickstad suggested just add "indictment" -- "delay in finding an indictment..." Mr. Sand spoke in favor of keeping the language that had been stricken by previous action. Mr. Vogel withdrew his proposal.
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Mr. Sand MOVED to reinstate the language "in presenting ... or".Motion was seconded by Judge Pearce, Mr. Vogel, Judge Burdick, Mr. Graham, and Mr. Shaft. Motion CARRIED unanimously.
Mr. Graham made the point that the RECORD should show that the intent of 48(b) is that dismissals will happen only in the event that they are not filed.
Explanatory Note, ¶(b):
Judge Burdick MOVED to reinstate the language that had been stricken from the Note by previous action. Mr. Shaft and Mr. Graham seconded.
Mr. Shaft MOVED to adopt Rule 48 and the Explanatory Note.There were several seconds to the motion. Motion CARRIED without objection.
RULE 49 -- no change
Mr. Sand MOVED to adopt Rule 49 and the Explanatory Note.Judge Pearce seconded. Judge Burdick noted in subdivision (c), line 4, the language "or relieve". He asked what it means. Judge Erickstad suggested checking with the Federal Rule to see if the language is contained there and it was found that the language tracks. Judge Burdick suggested inserting commas. The motion to adopt CARRIED.
RULE 50 -- no change
Mr. Graham MOVED to adopt Rule 50 and the Explanatory Note.Judge Pearce seconded; the motion CARRIED.
RULE 51 -- no change
Judge Burdick said Rule 51 needs a reference to taking exceptions on instructions. It was felt it was taken care of by the cross reference. Judge Burdick suggested adding language to the Rule, "except as required under Rule 30".
Mr. Graham MOVED to adopt Rule 51. Second by Judge Pearce. CARRIED.
RULE 52 -- no change
In the absence of Judge Glaser, author, Judge Smith MOVED to adopt Rule 52. Judge Muggli seconded. It was noted that the Federal Rule is identical except for the word "plain". Motion CARRIED.
RULE 53
The change in Rule 53 and Note was the addition of a Cross Reference to Rule 42, Contempt. Judge Muggli MOVED to adopt Rule 53. Second by Judge Pearce. Motion CARRIED.
RULE 54
Judge Smith, sponsor, MOVED to adopt Rule 54 and the Explanatory Note. Judge Pearce seconded.
Judge Burdick MOVED to strike the words "actions and" in subdivision (a). Second by Judge Pearce and CARRIED.
The motion to adopt CARRIED.
RULE 55 -- no change
Judge Murray MOVED to adopt Rule 55. Second by Judge Pearce. CARRIED.
RULE 56
Judge Murray MOVED to adopt Rule 56. Mr. Vogel seconded the motion and observed that the title should be "Courts Always Open." Judge Burdick MOVED to amend the title to read "Courts Always Open" and to insert a comma after the word "process" in line 2. Mr. Vogel seconded the motion to amend. Judge Murray, sponsor, agreed with the proposed amendment. Motion CARRIED, with Judge Muggli opposed.
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Motion to adopt the Rule CARRIED.
RULE 57
Judge Burdick MOVED to adopt Rule 57. Judge Muggli seconded. Judge Erickstad suggested the Rule be amended as follows; "In all cases not provided for by rule or statute, (((the governed))) a court may regulate..." The language of Rule 57 originates from the Civil Rule. Judge Erickstad read Rule 83.
Rules by District Courts
Each district court, upon agreement of the judges or a majority thereof, may from time to time make and amend rules governing its practice not inconsistent with these rules or other rules prescribed by the supreme court. Copies of rules and amendments so made by any district court shall upon their promulgation be furnished to the supreme court of this state. In all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules.
The RECORD notes the arrival of Judge Glaser.
Judge Pearce MOVED to delete the words "the governed" and substitute "a". Mr. Graham seconded the motion to amend. Judge Burdick stated he felt "the" would be preferable. The motion CARRIED unanimously.
The motion to adopt Rule 57 CARRIED.
RULE 58 -- no change
Judge Burdick MOVED to adopt Rule 58. Seconded by Judge Pearce. The motion CARRIED unanimously.
Judge Smith suggested that Judge Burdick leave blank space at the top of the forms (for informational stamp). Judge Glaser, who had not been present for the consideration of the forms, stated he had no specific suggestions.
RULE 59
Mr. Travis noted one change: "...the statutes listed as superseded in (((Tables A and B))) the Table of Statutes Affected are superseded." Judge Burdick, sponsor, MOVED to amend subdivision (b) as suggested above. Mr. Sand questioned the meaning of the phrase "in conflict herewith". It is noted for the RECORD that that is the meaning of this Rule. Motion to adopt CARRIED.
Judge Burdick MOVED to adopt Rule 59 as amended. Mr. Graham seconded. The motion CARRIED unanimously.
Explanatory Note:
Mr. Graham noted line 5 should state "...the thirtieth day...". Judge Burdick MOVED to adopt the Explanatory Note. He suggested line 4 should read "...and conforms to existing law...", not "follows". On call for the question, the motion CARRIED.
Judge Smith questioned whether the Committee wishes to make a statement as to how to handle prosecutions that have commenced but have not been completed on the effective date of the Rules.
Judge Burdick made the all-encompassing MOTION to adopt Rule 59 and Explanatory Note, as amended. Judge Pearce seconded. CARRIED.
RULE 60 -- no change
Judge Burdick MOVED to adopt Rule 60. Second by Judge Pearce. CARRIED.
Judge Burdick instructed the staff to make the correction in Rule 12(a) to read "county court with increased jurisdiction". Judge Burdick MOVED to that effect. Second by Mr. Vogel and CARRIED.
Judge Erickstad suggested that authority be given to expend possible remaining funds for typing or proofreading, etc., necessary to complete the project. John Graham MOVED to extend to the Chairman of the Rules Committee
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authority to expend the funds necessary for publishing the Rules.Judge Muggli seconded and the motion CARRIED.
Judge Erickstad asked Committee members if they want to be present when the Rules are presented to the Court. Judge Murray stated the bar hopes to receive more notice than they received with the Appellate Rules.
ADJOURNMENT
Judge Burdick MOVED to adjourn. Judge Murray seconded. Motion CARRIED unanimously.