Committee on Trial Court Operations
Radisson Hotel, Bismarck
April 11, 2008
Members Present: Judge David Nelson, Chair, Louie Hentzen, Chris Iverson, Deb Simenson
Members Absent: Kay Newell Braget, Jody Fixen, Judge Debbie Kleven, Cindy Schmitz
Others Present: Janelle Moos, Shelly Carlson, NDCAWS, Amy Arenz, Advocate, AARC
Chair Nelson called the meeting to order at 10:00 a.m. and Committee members continued review of revisions to the domestic violence protection order forms
Domestic Violence Protection Order Forms - Review of Revisions
Chair Nelson drew attention to Attachment B (April 4, 2008)- the permanent and temporary protection order and petition forms with revisions based on the November 9 and January 24 meeting discussions. Committee members then reviewed the forms and discussed additional modifications.
Permanent Protection Order Form. Staff noted that the overstruck language and language in bold italics represents deletions and additions made at the January 24 meeting. He said the changes made at the November 9, 2007, meeting have been incorporated in the order form as regular provisions.
Judge Nelson emphasized the desirability of having an order format that clearly reflects in the final order only what is necessary. Ľ He said the use of optional provisions in the draft order will allow selection of only those provisions to appear in the final order, while provisions not selected would not appear. To that end, he suggested an option box should be included on page 3, lines 19- 21, with respect to the proximity provisions. He said if theĽoption is selected, then a specific location would be identified in the order and if the option is not selected, then the order would simply refer to "petitioner's home" or "petitioner's place of employment", etc. Committee members agreed the option boxes should be added.
Shelly Carlson drew attention to the general proximity prohibition on page 3, line 18, and suggested a specific reference to "Petitioner" should be included to m.alce clear who is the protected person. It was also suggested an option box could be added im.m.ediately following the reference to "Petitioner" to enable the selection of the specific location provisions that follow on lines 19-21. Com.m.ittee m.em.bers agreed the suggested revisions should be made.
With respect to the provision on page 5, line 14, that law enforcement "m.ay" supervise the parties in the rem.oval of personal belongings, Am.y Arenz asked whether "shall" should be used. Judge Nelson said he preferred retaining the "m.ay" reference since the sheriff's office will almost certainly perform the function anyway. He said iflaw enforcement refuses to supervise the removal of personal belongings, then there is a different kind of problem. that requires some attention.
Shelly Carlson asked whether the supervision provision might be better placed in the section giving notices to the respondent. Following discussion, Com.m.ittee m.em.bers agreed lines 14-15 on page 5 should be deleted and a new provision should be added to the section directed to the respondent. The new provision would be as follows" "You m.ay remove personal belongings from the restricted residence by contacting law enforcem.ent and making appropriate arrangements." It was agreed also that the provision should be an optional selection.
Temporary Protection Order Form. Com.m.ittee m.em.bers then reviewed revisions to the temporary order form. Staff explained that the temporary order form was revised to reflect changes to the perm.anent order form which would also be applicable to the temporary order. He said the reference in the opening paragraph on page 2 to "actual and im.m.inent domestic violence" should be changed to "an im.m.ediate and present danger of domestic violence", which would reflect statutory language governing temporary orders. Committee members agreed the changes just made to the permanent order should be made to like provisions in the temporary order.
With respect to the hearing notice on page 4, Judge Nelson wondered whether it is necessary to particularly identify where the hearing will be held, since the order already identifies the county in which the matter is to be heard. Deb Simenson said the additional direction is often helpful.
Deb Simenson drew attention to page 4, lines 19-20, which direct the respondent to contact law enforcement to arrange the details of how to surrender firearms. She asked whether the provision is necessary since law enforcement will likely want the firearms surrendered immediately upon service of the temporary order. Shelly Carlson noted that language on page 3, lines 22-23 requires the surrender to law enforcement serving the order. She said her experience has been that law enforcement will take the frrearm.s at the time the temporary order is served. Judge Nelson noted that iflines 19-20 on page 4 are deleted, then the corresponding language on line 24, which addresses what happens if the respondent does not contact law enforcem.ent, should also be deleted.
Judge Nelson drew attention to page 6, lines 16-17, the directive to the respondent to read the following notice. He wondered whether the language was necessary. Committee members agreed the language could be deleted since the following notice is clearly introduced as ''Notice to the Respondent".
Petition Form. Committee members next reviewed revisions to the petition form resulting from the January 24 meeting discussion.
Judge Nelson suggested, and Committee members agreed, that "children" in paragraph 3 should be changed to "child[ren]".
Judge Nelson noted the reference in paragraph 5 to "This person is my" and said there is nearly always difficulty in completing the paragraph depending on who the respondent actually is. Following discussion, Committee members agreed the reference should be changed to "Relationship to Respondent".C
ommittee members agreed references to "(his)(her)", meaning the respondent, should be changed to "Respondent" throughout the form. There was also agreement that "(He)(She) may be described as follows:" in paragraph 9 should be changed to "Description of Respondent". Shelly Carlson suggested, and Committee members agreed, that sex should be added as an identifier in paragraph 9.
Judge Nelson suggested the spaces provided in paragraphs 10 and 11 to identify the name of the respondent should be changed to simply reflect "the Respondent". Committee members agreed.
Committee members agreed paragraphs 14, 16, 17-19 should be listed as options to be selected.
Judge Nelson asked whether there was any purpose served by including the "Yes/No" options in paragraph 20, which concerns the belief that there is an immediate and present danger of domestic violence. Committee members agreed the options should be deleted.
With respect to paragraph 21, which provides space for the petitioner to describe incidents that are the basis for the petition, Judge Nelson said there often are programming complications that result inthe words being compressed together in this paragraph. Amy Arenz said she does not use the space provided on the form; instead a separate document is attached to the petition describing the incidents. Committee members agreed "see attached sheets" should be substituted for the lined space provided on the form. Shelly Carlson suggested the same approach may also work with respect to the following optional paragraph describing use of firearms. Committee members agreed.
Staff noted the change agreed to at the last meeting - including a space for the attorney's name, signature, and bar identification number - was inadvertently left out of the revisions. It will be included in the next draft.
Shelly Carlson said she would solicit comments from sheriffs' representatives concerning the preferred approach for picldng up firearms that are ordered to be surrendered by the respondent.
Firearms Notice and Forms for Surrender of Firearms
Chair Nelson drew attention to Attachment C (April 4, 2008) - draft firearms notice and forms for surrender of firearms prepared by Judge Kleven. Committee members agreed discussion of the forms should be deferred until Judge Kleven can attend.
Criminal Judgment Form - Appendix A - Revisions
Chair Nelson drew attention to Attachment D (April 4, 2008) - an Administrative Council referral of revisions to the criminal judgment form and Appendix A and an email from Chris Iverson concerning an additional revision to the judgment form.
With respect generally to the suggestion submitted by Chris Iverson - inclusion oflanguage in the judgment form indicating waiver of counsel where appropriate - Judge Nelson said the additional language would be helpful. Committee members agreed additional language should be added to the opening paragraph of the judgment form indicating the defendant appeared in court without counsel, that the defendant was informed of the right to counsel, and that the defendant waived the right to counsel.
Chair Nelson said the Committee would take up further discussion of the subject at the next meeting.
Items from Previous Meetings
Chair Nelson next drew attention to Attachment E (April 4, 2008) - a number of items carried over from previous meetings.
Small claims actions - dismissed vs. denied. Committee members reviewed the email and background information from Chris Iverson describing a difference in practice concerning whether small claims cases are denied or dismissed. It was noted that the UCIS screen only reflects dismissal without prejudice. Deb Simenson noted that the judicial referee in her court will sometimes dismiss a small claims case after a determination that the matter cannot adequately be addressed in small claims court. Following discussion, there was general agreement that an option for denying the claim should be available. It was also agreed the matter should be referred for incorporation in the current project to replace UCIS. Chris Iverson will present the issue to the project's Caseflow portfolio.
Assignments of judgments. Committee members reviewed the draft procedure prepared by Kay Braget concerning how to handle assignments of judgments. Deb Simenson noted that Kay Braget had sent an email suggesting that "(against)" be replaced with "(for)" in paragraph 2.6A( c).
After further discussion; Committee members agreed the procedure, with the noted correction, should be included in the next set of Manual revisions (Civil section placement) to be submitted to the Administrative Council.
Ledger card changes - deceased defendant. Committee members next reviewed the email submitted by Louie Hentzen noting uncertainty about how to handle outstanding financial obligations reflected on the ledger card when a defendant is deceased. Deb Simenson noted that there are several differing procedures. For example, she said, some clerks delete the SSAN, while some change the amount owed to zero. Louie Hentzen asked whether the judgment should be deleted from the system. Judge Nelson said the judgment information should be retained because there may be some other action, e.g. a probate, related to the person's outstanding obligation. Deb Simenson said the procedure followed in her office is to suspend the amount owed, delete the payment schedule and move the information to history, and then use an Event Code 200 to reflect.
Judge Nelson suggested the more appropriate method for resolving the matter would be to have a petition to the court followed by an order. He said such a procedure would protect staff from questions concerning the zeroing out of money owed to the state. Deb Simenson noted that the task of filing the petition would likely fall to the clerks since it may not be a high priority for state's attorneys. Judge Nelson said one alternative would be to handle the suspension administratively, but there may be oversight and supervision issues that would require attention. There was general agreement that a petition should be submitted to the court outlining the facts (person deceased based on the following facts) and then the court could enter an order suspending the obligation if satisfied. Deb Simenson will pull together the protocol followed in her office for review as part of a possible petition procedure. Chris Iverson noted that the new procedure would have to be included in the general ledger card procedure.
There being no further business, the meeting was adjourned at 1:15 p.m.
Jim Ganje, Staff