Spring 2017 Spring 2017 Gavel-low res | Page 22

COURT AMENDS RULES IN RESPONSE TO MARSY’S LAW nondisclosure of contact information under the provision. In response to Art. I, § 25(1)(e), the Court made three rule amendments. Subdivision (f ) of Criminal Procedure Rule 16 on discovery and inspection was amended to bar a prosecutor from disclosing contact information of a victim if the victim makes a request. MIKE HAGBURG Attorney at Law The North Dakota Supreme Court has adopted several rule amendments in response to the Marsy’s Law constitutional amendment, N.D. Const. Art. I, § 25. The amendments take effect May 1. The amendments were developed by the Joint Procedure Committee in response to a request by the Administrative Council. In drafting the amendments, the committee attempted to take a minimalist approach, limiting any changes to what was needed to eliminate conflict between the rule text and the constitutional provision. N.D. Const. Art. I, § 25(1)(e) gives victims: “[t]he right to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information about the victim, and to be notified of any request for such information or records.” Attorney General Wayne Stenehjem discussed this provision in a Dec. 30, 2016, opinion. While the opinion considers Art. I, § 25(1)(e) to be generally ambiguous, it does conclude that victims may request 22 THE GAVEL Subdivision (a) of Rule of Court 3.4 on privacy protection for filings was amended to require, upon request of the victim, the redaction of all victim contact information from documents before they may be filed with the court in a criminal or delinquency case. New language was added to Section 6 of Administrative Rule 41 on access to court records to require, upon request of the victim, redaction of all victim contact information contained in a criminal court record that has already been filed. N.D. Const. Art. I, § 25(1)(f ) gives victims: “[t]he right to privacy, which includes the right to refuse an interview, deposition, or other discovery request made by the defendant, the defendant’s attorney, or any person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interaction to which the victim consents.” The Court made two rule amendments in response to this provision. A new paragraph (a)(5) was added to Criminal Procedure Rule 15 on depositions allowing a victim to refuse to participate in a deposition requested by the defendant or the defendant’s attorney. Similar language was added to paragraph (e)(1) of Juvenile Procedure Rule 12.1 on depositions, allowing a victim to refuse to participate in a deposition requested by a respondent or a respondent’s attorney. N.D. Const. Art. I, § 25(1)(g) provides “[t]he right to reasonable, accurate, and timely notice of, and to be present at, all proceedings involving the criminal or delinquent conduct, including release, plea, sentencing, adjudication, and disposition, and any proceeding during which a right of the victim is implicated.” In response to this provision, a new paragraph (3) was added to Juvenile Procedure Rule 4 on interested persons to allow a victim, on request, to take part in a delinquency case. N.D. Const. Art. I, § 25(1)(l) gives victims the right “to receive a copy of any presentence report or plan of disposition when available to the defendant or delinquent child.” The Court amended paragraph (c)(4)(B) of Criminal Procedure Rule 32 on sentencing and judgment to allow the prosecutor to disclose to the victim, on request, any material from the presentence report disclosed to the defendant and the defendant’s counsel. Finally, in addition to making these rule amendments, the Court administratively changed the way payments collected from defendants are distributed. N.D. Const. Art. I, § 25(1)(n) requires “[a]ll monies and property collected from any person who has been ordered to make restitution shall be first applied to the restitution owed to the victim before paying any amounts owed to the government.” Restitution payments now have top priority when funds paid by the defendant are distributed by the court system.