The State Bar Association of North Dakota Spring 2013 Gavel Magazine | Page 24

COURT RULE AMENDMENT Mike Hagburg Attorney at Law Court Rule Amendment Process is Focused on Transparency While lawyers are sometimes surprised by amendments to the procedural rules, the process for making these changes is extensive and designed to allow maximum participation by the bench, bar and public. Under Article VI, Section 3, of the state constitution, the North Dakota Supreme Court is empowered to promulgate rules of procedure to be followed by all the courts of the state. This is a different system than that used by the federal government: the United States Supreme Court may make and amend court rules, but final approval of these rules is up to Congress. The court has established the “Rule on Procedural Rules, Administrative Rules and Administrative Orders” to guide the promulgation and amendment of court rules. Under Section 3 of these rules, any person may petition for “the adoption, amendment or repeal” of a procedural rule. Under section 4, persons can also request a study by a standing committee on rules. The primary committee that reviews procedural rule proposals is the Joint Procedure Committee. The membership of this committee consists of 10 judges and 10 attorneys, one of whom is appointed by the State Bar Association of North Dakota as its liaison. The committee meets three times a year to consider rule proposals. At a recent meeting, the committee considered rule amendment and review proposals from the Supreme Court, a committee member, two district judges and three practicing attorneys. The committee has a continuing duty to review and update the rules of procedure. Since 2000, the committee has fulfilled this duty by making form and style changes patterned on amendments to the federal rules of procedure. These form and style amendments are designed to make the rules more understandable and consistent. The committee so far has completed form and style amendments to the Rules of Appellate Procedure, Criminal Procedure, and Civil Procedure. The committee is currently working its way through form and style changes to the Rules of Evidence. Once the committee completes its work on a rule, it must petition to the Supreme Court to have the rule amended. The committee typically submits an annual petition for amendment of court rules in July. When the court receives the committee’s petition, it sets a hearing, generally for October. The court provides a hearing notice, which is sent to all the state’s judges and court officials and which is posted on the court’s website. News about the hearing notice is also sent everyone who subscribes to the court’s daily news e-mail. The court’s intent in providing this wide notice is to encourage maximum participation in the rules hearing, through live appearances or written comments. In addition to the Joint Procedure Committee’s annual petition, the court acts on rule amendment proposals received from its other committees and the public throughout the year. When the court receives a proposal to amend a procedural rule, it typically refers it to the Joint Procedure Committee. The court considers other proposals on its own or with the assistance of other committees, and generally provides a 30-day public comment period before taking action on a rule amendment. Notice of the comment period is provided in the same way as notice of the annual rules hearing. The history of Rule of Court 3.5, the court’s new rule on electronic filing in the district courts, shows the court’s rulemaking procedure in action. The district court electronic filing procedure was originally devised by the Joint Procedure Committee and implemented as a pilot project under Administrative Order 16 in 2006. Administrative Order 16 was then amended in 2008 and 2009 to improve electronic filing procedure. In 2010, an addendum was added to the order to provide a specific electronic filing procedure for districts using the Odyssey® system. Further amendments were made in 2011. In 2012, after the Odyssey® system was implemented statewide, the addendum and other separate orders related to electronic filing were repealed and their content was incorporated into Order 16. The order was also amended to make electronic filing and service mandatory as of April 1, 2013. The court sent these changes out for public comment. It also sent the order to be reviewed by the Court Technology Committee and the Joint Procedure Committee. Finally, in January 2013, the court repealed Order 16 and transferred its content to Rule of Court 3.5 so it would be more accessible to attorneys and other court users. Mandatory electronic filing and service has now taken effect in North Dakota, and Rule 3.5 is subject to continued review and amendment under the state’s rulemaking process. 22 The Gavel Spring 2013