The State Bar Association of North Dakota Winter 2015 Gavel Magazine | Page 18

SUPREME COURT MAKES AMENDMENTS TO PROCEDURAL RULES can be used in remote hearings while at the same time establishing standards for the use of this technology. MIKE HAGBURG Attorney at Law The North Dakota Supreme Court has approved a variety of rule amendments that will take effect March 1, 2015. Several amendments were made to Criminal Procedure Rule 43, which covers the presence of the defendant at court proceedings. The changes make it easier for defendants to participate in hearings by remote means. If the court permits, a defendant may be present at a proceeding through a contemporaneous audio or audiovisual transmission by reliable electronic means. In addition, a represented defendant in a felony case may be allowed to waive presence at the preliminary hearing by submitting a not guilty plea in writing. The rationale behind the amendments to Rule 43 was to help reduce travel costs and inconvenience for defendants, the prosecution and the courts. Meanwhile, Administrative Rule 52 was expanded in scope from covering only interactive video to governing all use of contemporaneous audio or audiovisual transmission by reliable electronic means in court proceedings. This change expands the possible means of communication that 18 THE GAVEL Amendments to Rule of Court 11.2 on withdrawal of attorneys will require attorneys seeking to withdraw from representation to provide more information to the court. In cases where a client disappears and notice of withdrawal cannot be delivered, the attorney must submit an affidavit regarding the efforts made to provide notice of withdrawal to the client. In all cases where withdrawal is sought, the attorney must now provide the client’s last known e-mail address and telephone number to the court. Administrative Rule 13 on judicial referees saw a minor amendment that allows a presiding judge to authorize a judicial referee to handle emergency guardianship proceedings. In addition, language was added to the rule’s explanatory note to define the word “proceeding” as it is used in Section 8 of the rule, which sets out how a party may request a district judge rather than a referee to preside. The explanatory note now states that “[a] ‘proceeding’ under this rule has the same meaning as a proceeding under N.D.C.C. § 29-15-21.” This statute covers demands for changes of judge. Among other things, the statute allows a party to request a new judge in a proceeding to modify an existing order for alimony, proper division, child support or child custody. A further amendment to Administrative Rule 13 had been proposed to eliminate district judge review of referee decisions, but the Supreme Court decided to send this proposal back to the Joint Procedure Committee for additional study. In other rule amendments, the explanatory note of Civil Procedure Rule 3 on commencing an action was amended to clarify that an action is not commenced for the purpose of tolling a statute of limitation except as provided in N.D.C.C. § 28-0138. This statute plays a role in determining when a civil action is commenced because it provides that “[a]n attempt to commence an action is equivalent to the commencement thereof ” under certain circumstances. Civil Procedure Rule 26 on discovery was amended to bring it up to date with electronic filing and service, removing a reference to filing documents in a sealed paper envelope and specifying that an attorney’s electronic mail address for electronic service must be included in the attorney signature block. Rule of Court 10.1 on conduct in court was updated to clarify the rule’s guidance on the use of electronic devices in court. Under the amendments, electronic devices may not be used to photograph or record court proceedings without prior permission from the court. An amendment to Administrative Rule 41 on access to court records clarifies a previous amendment on public access to documents in domestic violence protection order and disorderly conduct restraining order cases. If an initial petition for one of these orders is dismissed summarily without a contested hearing, public access to documents filed in the case is prohibited. Copies of the amended rules, in legislative format with changes highlighted, can be found on the North Dakota Supreme Court website.