Committee on Trial Court Operations
Doublewood Inn, Bismarck
April 17, 2009
Judge David Nelson, Chair Kay Newell Braget Jody Fixen Louie Hentzen Chris Iverson Judge Debbie Kleven Deb Simenson Cindy Schmitz
Chair Nelson called the meeting to order at 10:00 a.m.
Committee members reviewed Attachment B (April 9, 2009) - an email from Judge Nelson outlining probate issues that had arisen recently in light of oil activity in the western area of the state, and a checklist used by judges in the Northwest judicial district to address mineral probate issues. It was noted that clerks of district court are permitted by law to sign papers in informal probate matters if certain requirements are satisfied (N.D.C.C.§ 30.1-02-06).
Judge Nelson emphasized the importance of a procedure or direction regarding when papers can be signed if the three-year time period has elapsed since the date of death and there has been no probate action. Committee members discussed the current probate checklist in the Clerks Manual (Section 6A.5), which directs that the matter be referred to the court for review if the three-year time period has passed. There was general agreement that the current checklist is sufficient.
Judge Nelson explained recent problems caused by the failure to modify comments in the Uniform Probate Code to reflect changes to the related statutes.
Committee members discussed the practice of clerks issuing certified copies of letters testamentary or letters of administration. It was noted that some clerks are of the opinion that they cannot issue certified copies if the estate is closed. Judge Nelson explained that there have been situations in which a person filing a deed with the county recorder has failed to attached a certified copy of the letters indicating the person had the authority to sign the deed. Later, he said, when title opinions are done the deeds will not have letters attached and attorneys will then request certified copies of the letters indicating that the letters were in full force and effect on the date the deed was filed. He said a practice by some clerks, if it appears the probate has been closed, is to check the dates when the probate was opened and closed and then certify that the letters were in full force and effect on the affected date. Others, he said, are reluctant to, or will not, issue the certified copies.
Jody Fixen explained that she had ordered a special certification stamp that would indicate the letters were in full force and effect on a specified date.
Committee members discussed whether to add a provision to the Probate section of the Manual to address certification ofletters and the contents of a certification stamp. Kay Braget agreed to develop a draft for Committee review at the next meeting.
Acknowledgment of Paternity - Juvenile Case Procedures - Manual Revisions
Committee members then reviewed Attachment C (April 9, 2009) - an email and attached draft Manual revisions submitted by Chris Iverson. The revisions address situations in which acknowledgments of paternity are filed and address general procedures for handling juvenile case files.
Chris Iverson explained that the draft revisions were developed by the unit administrators. She said the revisions concerning acknowledgments of paternity are intended to address confusion about the status of acknowledgments (confidential or public) and how they are filed. She said the suggested revisions would clarify that an acknowledged paternity action for purposes of establishing child support would be treated as a regular civil, i.e., public, filing. The revisions would be to current provisions in the General Procedures Section and the Confidential Records Section.
Following discussion, it was moved by Deb Simenson, seconded by Judge Kleven and carried that the suggested revisions be approved.
Chris Iverson said the revisions regarding juvenile cases suggest adding four paragraphs to Section 9.3 of the Clerks Manual regarding juvenile court records. She said consideration of the. revisions began with an effort to obtain accurate juvenile statistics from UCIS. That effort, she said, was hampered by the lack of guidance on how juvenile cases are handled and different practices concerning how files are opened. The suggested procedures would describe when ajuvenile case is opened, the use of only one file number for each initiating case document, how multiple case categories are used, use of one case number when multiple participants are involved, entry of data regarding placement and removal of a child from temporary custody, and how a file is closed and reopened.
Louie Hentzen noted that data entry in the case management system has improved and more complete and accurate information is being captured. He agreed there are disparities among the clerks' offices concerning entry of juvenile case data in UCIS.
Judge Kleven observed that there are often inconsistencies in how the case file is maintained by juvenile court staff, which complicates adjudication when the file comes to court.
Chris Iverson noted that in some counties separate petitions, with separate case numbers, are used when more than one child in a family is involved or more than one allegation, e.g., abuse or neglect, is involved. Inother counties, she said, one petition with one case numberis used.
Louie Hentzen observed that the national association standard is that each child is an individual case and should be counted in that manner. In some states, he said, multiple cases involving the same family are bundled for purposes of the hearing.
Committee members then reviewed the suggested procedures regarding juvenile court records.
With respect to suggested paragraph A, which provides that juvenile cases begin when initiating documents are filed, Judge Kleven asked whether it was necessary to retain the last sentence ["Initiating documents may be filed in person, by mail, or by fax."] Committee members agreed the sentence should be deleted as the General Procedure Section describes general filing practices.
Kay Braget drew attention to the requirement in paragraph B that the "date of entry in temporary custody" should be entered in the case management system when a child is placed in temporary custody. She said clerks very often do not know what the date of entry into custody is. Additionally, she asked whether it would be a clerk function to enter the data or whether it would be the responsibility of juvenile court staff.
Louie Hentzen noted that the information concerning date of entry would be available only if there was an order placing the child in temporary custody.
Deb Simenson said staff in her office do not independently close outjuvenile cases. She said a list of actions is provided by juvenile court staff and clerk staff enter the information accordingly.
Louie Hentzen said he is unsure whether there is any consensus about whether juvenile court officers should enter information updating court records other than, perhaps, setting hearings. Consequently, he said, if the data is not entered by the clerk, then the information will not be reflected in the court record.
Chris Iverson explained that when she runs a monthly docket currency report she can choose a report for all juveniles, a report for in-custody juveniles, or a report for juveniles not in custody. She said the in-custody reports are generated on a much shorter time-frame because action is required within 60 days, while non-custody cases have a longer time-frame.
Judge Kleven observed that she does not know if a child is not in custody and clerks likely do not know as well. She asked how information is provided concerning the child's status or the need for a hearing. Chris Iverson said that in her administrative unit juvenile court officers use a cover sheet in temporary custody situations, which is attached to each order, so that when the clerk opens the file it is clear what code would be used. Judge Kleven said an alternative may be to provide the cover sheet for general use.
Staff asked whether the suggested procedure could work effectively if there is no uniform practice, e.g., use of a cover sheet, for providing information concerning temporary custody situations.
Following further discussion, Committee members agreed the language regarding entering the date of entry in temporary custody should be modified to require entry of the "date of the order placing the child in temporary custody".
Staff asked whether a similar change should be made to the language in paragraph C regarding situations in which the child is released from temporary custody. There was general agreement that when a child is released will not be generally known to clerk staff and there is not often an order to release. Judge Kleven suggested a requirement could be included in the temporary custody order directing the custodial entity to notify the court when the child is released. Following discussion regarding how to accomplish a change to the order, Chris Iverson said the matter could be discussed with the juvenile court directors. Committee members agreed. There was also agreement that the related language in paragraph C could remain as is, with the "should be entered" construction, which would enable clerks to enter the information if they have it.
With respect to the opening language of paragraph C regarding when a case is considered closed, Kay Braget asked whether additional language should be included indicating that the case is closed if there is an order for temporary shelter care and no petition is subsequently filed within 30 days. Judge Nelson suggested paragraph C could be modified to provide simply that a "Case is closed" and then list the relevant actions, such as no petition filed within 30 days or the case is adjudicated and there is an order of disposition or other closing order. Chris Iverson asked whether language should be added regarding closure if a temporary custody order is not extended.
Committee members agreed the suggested procedure should be revised to reflect the agreed to changes and reviewed at the next meeting.
Elections, Executions, Bankruptcy - Procedures
Committee members then reviewed questions submitted by Kay Braget concerning deletion of the Elections Section from the Clerks Manual, additional procedures for executions onjudgments, and bankruptcy procedures [Attachment D (April 9, 2009)].
The Elections Section will be deleted from the Manual as it is no longer a clerk duty. Staff noted that 2009 legislation substantially revised statutes regarding the execution process, but the legislative history indicates the changes were intended mainly to simplify and standardize the process. He said draft revisions to the relevant Manual sections will be prepared for future review. A new banlauptcy procedure will be distributed in the near future.
Confidentiality of Personal Information - Recent Rule Developments
Committee members discussed recent amendments to Administrative Rule 41 and new Rule 3.4 of the Rules of Court, regarding redaction of documents filed with the court and confidentiality of related personal information. It was noted that several questions had arisen concerning how the rule changes could be implemented and the burden placed on clerks. Staff said general guidance has been provided to clerks, but the related procedure in the Clerks Manual based on previous Rule 3.1 of the Rules of Court would be require revision. He noted, however, that the Joint Procedure Committee will consider possible additional amendments to the rules at its May meeting. Consequently, he said, Manual revisions may be premature.
Committee members will discuss the rules further at the next meeting.
There being no further business, the meeting was adjourned at 1:15 p.m.
Jim Ganje, Staff