N.D. Sup. Ct. Admin. R. & Ord. 52

As amended through March 18, 2024

Rule 52 - Reliable Electronic Means Proceedings

Section 1.Purpose and Definition.

This rule provides a framework for the use of reliable electronic means for proceedings in North Dakota's district and municipal courts. This rule is intended to enhance the current level of judicial services available within the North Dakota court system through the use of reliable electronic means and not in any way to reduce the current level of judicial services.

Section 2.In General.

(a) Subject to the limitations in sections 3, 4 and 5, a court may conduct a proceeding by reliable electronic means on its own motion or on a party's motion.

(b) Prior to filing a motion to conduct a proceeding by reliable electronic means, a party must attempt to contact the other parties to determine whether they agree or object.

(c) A party's motion must:

(1) be written;

(2) contain a short and plain statement of the reasons why conducting the proceeding by reliable electronic means is appropriate;

(3) indicate whether the parties agree to conducting the proceeding by reliable electronic means;

(4) provide a statement of good cause if a party' is requesting to shorten the time requirements under subsection (e).

(d) Neither a notice of motion nor supporting brief is required.

(e) A motion to conduct a proceeding by reliable electronic means must be served at least seven days before the proceeding. Any response must be served at least four days prior to the proceeding. The court for good cause may shorten the time requirements of this rule.

(f) If a reliable electronic means motion is approved, the parties must coordinate with the court to facilitate scheduling and manage technical aspects of the proceeding, including arranging for confidential attorney-client communication.

(g) A method for electronic transmission of documents must be available at each site where reliable electronic means are used in a court proceeding for use in conjunction with the proceeding.

Section 3.Civil Action.

(a) In a civil action, a court may conduct a trial hearing, conference, or other proceeding, or take testimony, by reliable electronic means.

(b) A trial may not be conducted by reliable electronic means unless the parties consent and the court approves. The court retains discretion to allow any witness to appear by reliable electronic means.

Section 4.Criminal Action.

(a) In a criminal action, a court may conduct a trial, hearing, conference, or other proceeding by reliable electronic means, except as otherwise provided in subsection 4(b).

(b) Exceptions.

(1) A defendant may not be tried, plead guilty, or be sentenced by reliable electronic means unless the parties consent and the court approves.

(2) Except when otherwise allowed by rule or law, a witness may not testify at trial by reliable electronic means unless the defendant knowingly and voluntarily waives the right to have the witness testify in person.

(3) An attorney for a defendant must be present at the site where the defendant is located unless the attorney's participation by reliable electronic means from another location is approved by the court with the consent of the defendant. The court must confirm on the record that the defendant has knowingly and voluntarily consented to the attorney's participation from a separate site and allow confidential attorney-client communication, if requested.

Section 5. Revocation of Probation Proceedings.

(a) When a petition for revocation of probation has been issued for a probationer, a court may conduct the revocation of probation hearing by reliable electronic means. Before a court may conduct a revocation of probation hearing by reliable electronic means for a probationer, the court must:

(1) confirm on the record that the probationer has knowingly and voluntarily consented to a revocation of probation hearing by reliable electronic means;

(2) confirm on the record that the probationer has knowingly and voluntarily consented to the probationer's attorney's representation from a site separate from the probationer; and

(3) allow the probationer opportunity for confidential attorney-client communication.

(b) If the court orders probation be revoked, the court must state on the record whether the period of incarceration imposed fully or partially satisfies the sentence imposed by the court.

Section 6.Mental Health Proceeding.

(a) In a mental health proceeding, a district court may conduct a proceeding by reliable electronic means and allow the following persons to appear or present testimony remotely:

(1) the respondent or patient;

(2) a witness;

(3) legal counsel for a party.

(b) Notice and Respondent's Rights.

(1) Notice. Before holding any mental health proceeding by reliable electronic means, the court must give notice to the petitioner and the respondent. The notice must:

(A) advise the parties of their right to object to the use of reliable electronic means;

(B) inform the respondent that the proceedings may be recorded on video and that, if there is an appeal, the video recording may be made part of the appendix on appeal and is part of the record on appeal.

(2) Respondent's Rights.

(A) The respondent or patient must be allowed to appear in person if requested. The respondent must be given the opportunity to consult with an attorney about the right to object to the use of reliable electronic means.

(B) If the respondent fails to make a request to appear in person or a timely objection to the use of reliable electronic means, the court may nevertheless continue the proceeding for good cause.

(C) If the proceeding is continued for any reason, the respondent will continue to be held at the facility where the respondent was receiving treatment or, at the choice of the treatment provider in a less restrictive setting, until a the hearing can be completed.

(D) A requested in-person appearance must be scheduled to occur within four days, exclusive of weekends and holidays, of the date the request was made, unless good cause is shown for holding it at a later time. The court retains discretion to allow any witness at the proceeding to appear by reliable electronic means

(3) Waiver. Upon mutual consent of the parties, and with the approval of the court, notice requirements in a mental health proceeding may be waived to allow for the conduct of proceedings without prior notice or with notice that does not conform to subsection 6(b)(1).

N.D. Sup. Ct. Admin. R. & Ord. 52

Joint Procedure Committee Minutes of April 28, 2023, page 13; September 29, 2022, pages 21-22; April 29, 2022, pages 2-8; January 27, 2022, pages 4-16; September 30, 2021, pages 13-14; January 28, 2021, pages 20-22; January 30, 2020, page 24; September 26, 2019, pages 21-22;January 25, 2018, pages 15-16; April 24-25, 2014, pages 15-16; April 27-28, 2006, pages 22-24; April 28-29, 2005, pages 21-22; April 24-25, 2003, pages 20-23; September 26-27, 2002, pages 4-12.

EXPLANATORY NOTE

This rule was adopted effective May 1, 2005. Amended effective June 1, 2005; March 1, 2015; 3/1/2019; 3/1/2021; amended effective 8/11/2021; 3/1/2022; 12/1/2022; 3/1/2024.

This rule was amended, effective March 1, 2015, to extend the application of the rule to proceedings conducted reliable electronic means.

Section 2 was amended, effective 12/1/2022, to clarify the procedure for making a motion to request a reliable electronic means proceeding, objecting to a reliable electronic means proceeding, and preparing for a reliable electronic means proceeding. The requirements of N.D.R.Ct. 3.2 do not apply to motions under this rule.

Sections 3 and 4 were amended, effective 12/1/2022, to allow a trial to be conducted by reliable electronic with the consent of the parties and the approval of the court.

Subsection 4(b)(2) was amended effective 3/1/2021, to allow witness testimony by reliable electronic means when authorized by rule or law.

Subsection 4(b)(2) was amended effective 3/1/2022, to allow witness testimony by reliable electronic means in a criminal action at a proceeding other than the trial.

Subsection 4(b)(3) was amended, effective 12/1/2022, to eliminate the requirement that a court make a finding of necessity before allowing an attorney's participation from a separate site in a guilty plea proceeding.

A new section 5 was added, effective 3/1/2019, to establish a procedure for the use of contemporaneous audio or audiovisual transmission using reliable electronic means in proceedings to revoke probation for probationers who are in another state.

Section 5 was amended, effective 3/1/2024, to clarify that reliable electronic means may be used for revocation of probation proceedings regardless of the location of the probationer.

Section 6 was amended, effective 12/1/2022, to allow the court to exercise its discretion on whether to hold a mental health proceeding by reliable electronic means. Under the amendments, the respondent or patient must be allowed to appear in person at any proceeding upon request.

Section 5 was amended December 11, 2018, effective 3/1/2019.

STATUTES AFFECTED:

CONSIDERED: N.D.C.C. § 31-04-04.2.