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.