Members Present
Judge David Nelson, Chair
Kay Newell Braget
Ted Gladden
Doug Johnson
Judge Debbie Kleven
Paulette Reule
Deb Simenson | Members Absent
None | Chair Nelson called the meeting to order at 9:00 a.m. and drew Committee members' attention to Attachment B (July 3, 2003) - minutes of the March 27, 2003, meeting. The minutes were approved without objection.
Issues for Discussion
Chair Nelson drew Committee members' attention to Attachment C (July 3, 2003) - a email concerning whether to discharge judgments in the receiving county if a renewal notice has not been received from the original county.
Paulette Reule said the issue does pose questions concerning whether to discharge a judgment when the clerk does not know if it has been renewed or cancelled in the original county. She wondered whether a clerk should simply discharge the judgment if ten years has passed since docketing in the receiving county and there has been no renewal. She said the issue is particularly a problem with judgments not entered in UCIS.
Ted Gladden said clerks have been instructed not to enter old judgments in UCIS unless there has been some activity regarding the case, and renewal or satisfaction would be such an activity.
Staff noted that provisions in the Civil Section concerning satisfaction and renewal are clear in directing the clerk to notify any county to which the judgment has been transcribed.
At the request of Chair Nelson, staff reviewed Attachment D (July 3, 2003) - a memorandum from Susan Sisk regarding clerk responsibility for bank accounts not owned by the state and related procedures developed in Grand Forks. The issue, he said, concerns whether the clerk should incur any responsibility for tracking a financial account established by parties at the direction of the court. It appears, he said, that Grand Forks is the only office that regularly tracks such matters.
Judge Kleven observed that accounts related to minor settlements were established in Grand Forks largely at the direction of a specific judge. She doubted that the practice was being followed any longer.
Committee members concluded the issue was isolated and would likely resolve itself when the particular accounts ran their course. It was agreed there was no need to consider a general procedure at this point.
Staff then distributed a recent email inquiring whether a file is opened and a filing fee assessed, along with a subpoena fee, when the clerk receives a request to issue a subpoena from an out-of-state law firm. A copy of the email is attached as Appendix A. He noted that Rule 45(a)(3) of the Rules of Civil Procedure describes the clerk's responsibility with respect to issuing such a subpoena.
Deb Simenson said she charges only the $10 subpoena fee. Paulette Reule questioned the need to open a file since there is no action within the state.
Deb Simenson suggested a procedure be included in the Manual. Committee members agreed the request should not be opened as a civil file and that only the subpoena fee be assessed. Paulette Reule suggested also addressing letters rogatory, that is, a letter from a judge in another jurisdiction requesting issuance of a subpoena.
Review of Possible Bankruptcy Procedures and Forms
At the request of Chair Nelson, staff reviewed Attachment F (July 11, 2003) - information, procedures, and forms developed by Grand Forks attorney John Foster for a presentation at the recent Clerks of Court Conference. He said it was suggested at the conference that the procedures and forms be submitted to the Committee for review and possible inclusion in the Clerk of Court Manual. He noted that issues concerning how clerks respond to the filing of bankruptcy discharges arise regularly and there is no specific guidance. Most particularly, he said, clerks will receive discharges that do not identify which judgments, when they have more than one docketed, to discharge, or the discharge will be for a judgment amount different from what is docketed.
With respect to the notice form, Deb Simenson said clerks were somewhat confused concerning John Foster's apparent suggestion that the clerk would simply send or give the form to the debtor and the debtor would then be responsible for obtaining and providing the information noted in the form. Additionally, she said, there was uncertainty about whether the clerk should sign the form before (when giving the notice to the debtor) or after (when the debtor obtains and submits the required information).
Paulette Reule observed that John Foster had also indicated that it is not necessary for a clerk to notify the clerk in a county to which a judgment has been transcribed of the discharge - that responsibility is with the debtor or debtor's attorney.
Judge Kleven suggested possibility of requiring the debtor to provide the items indicated in 1 through 6 of the notice form before the judgment is discharged. She said the clerk could then sign and provide the remainder of the form containing the related notices and qualifications.
Kay Braget said she would prefer to discharge the judgment and direct the debtor to serve notice on the creditor, rather than wait for the affidavit to be returned before discharging the judgment.
Following further discussion, it was agreed that the clerk members would review the information and develop and distribute a proposed procedure for review.
Disclosure of Treatment Records Governed by Federal Regulation
At the request of Chair Nelson, staff reviewed Attachment G (July 3, 2003) - forms regarding disclosure of drug and alcohol treatment records under 42 CFR Pt 2. He said federal confidentiality provisions governing drug and alcohol treatment records have been discussed at previous clerks' conferences. At the last conference, he said, it was suggested that the Committee review the forms developed in Stutsman County to determine if any related information should be included in the Manual. He noted that the Mental Health Forms Committee will review these particular forms for possible inclusion in the set of forms related to mental health commitments. He said it is likely not necessary to include the forms in the Clerk of Court Manual.
Judge Kleven suggested the forms could possibly be included in the Trial Court Benchbook. Ted Gladden agreed and suggested the question of including the forms in the benchbook be presented to the Council of Presiding Judges.
With respect to clerk responsibility for evaluation records made confidential by the federal regulation, Judge Kleven suggested including a directive in the Manual that clerks must place the records in a sealed envelope. Disclosure or examination of the records would be permitted only by court order.
After discussion, Committee members agreed that the noted instruction should be included in each section of the Manual where appropriate.
Clerk of Court Manual - Review
Chair Nelson next drew Committee members' attention to Attachment H (March 21, 2003) - revised Civil Section of the Clerk of Court Manual. Staff said the revisions incorporate the suggested changes discussed at the Committee's previous meetings. He noted that the Committee had discussed the possibility of distributing the revised sections to all clerks for comment.
Committee members agreed the suggested bankruptcy procedures to be developed by the clerk members could be circulated to all Committee members for preliminary review. Then, after general agreement, the procedures could be included in the Civil section for purposes of distribution and request for comments on the entire section.
Kay Braget suggested that Section 2.15 regarding garnishment judgments should be modified to provide for updating the judgment in UCIS. Committee members agreed Section 2.15A should be modified to insert "then update judgment" after "UCIS".
It was moved by Paulette Reule, seconded by Judge Kleven, and carried unanimously that the revised General section, and the revised Civil section, as further modified and including the bankruptcy procedures to be developed, be distributed to all clerks for comment.
Criminal Section
Committee members then turned to a review of the criminal section of the manual. Staff noted that revisions to sections 3.1 through 3.4 resulted from the Committee's discussion at the March 27 meeting.
With respect to section 3.2D, Doug Johnson suggested language be added to provide for identification of indigent defense counsel when necessary. Judge Kleven suggested a separate section could be included which addresses when a case involves indigent defense counsel and perhaps describes the application and administrative fee structure.
Paulette Reule then distributed suggested revisions to sections 3.6 through 3.9. A copy of the material is attached as Appendix B.
3.6 - Receipt and Entry of Subsequent Documents
After review, Committee members tentatively adopted the proposed revisions with the following changes:
-The opening paragraph was modified to refer to a case that has been "filed", rather than "initiated."
-Section A was revised to provide "File stamp papers on the first page of the document."
-Section B was modified to provide "Register papers in UCIS".
3.7 - Continuance
After review of the suggested revisions, Committee members tentatively adopted the proposed revisions with the following changes:
-The opening paragraph was modified to provide that a pending case may be continued at the direction of the court. The new language would address those instances in which a court has authorized the clerk to continue cases, or when judge approval is required to continue a case. Remaining language in the opening paragraph was deleted.
-The following reference was added: "Enter Continuance in UCIS. Continuances can be tracked and any problems identified by using UCIS code 12."
-Sections A and B were deleted.
3.8 - Bail Bonds
After discussion, Committee members tentatively adopted the proposed revisions to Section 3.8 with the following changes:
-The reference to "normally" was deleted from the second sentence in the opening paragraph.
-Proposed Section A(1) was revised to provide: " Receive bond. Bond should be accompanied by the approved bond envelope."
-Proposed Section A(2) was revised to provide: "Receipt bond in UCIS."
-Proposed Section A(3) was revised to further provide that bail may be "ordered" applied to fines, fees, costs, etc.
With respect to proposed Section B regarding surety, property, and unsecured bonds, Judge Kleven reviewed the Gand Forks procedure included as Attachment E (July 3, 2003). With respect to the procedure concerning forfeited bond in proposed Section B(2), Doug Johnson suggested there should be written notification to the bondsman that the defendant did not appear for a hearing. That, he said, may avoid disputes concerning whether the bondsman was actually notified and the bond rightfully forfeited.
Paulette Reule asked whether it is appropriate for clerks to be involved in tracking bail bonds, preparing the notices of failure to appear, and preparing the motions for forfeiture.
Committee members generally discussed various procedures the court might follow with respect to forfeiture of bond posted by a bondsman when a defendant fails to appear. It was noted that there are differing approaches concerning, among other things, whether a bondsman can post cash as a bond and the kinds of notices a bondsman must receive when the defendant fails to appear.
Following discussion, Committee members agreed existing Section 3.8E (Bond Forfeiture) would be revised as follows:
"E.Bond Forfeiture - Surety Bond.
1.Notify bondsman in writing of the defendant's failure to appear and the date on which bond may be forfeited.
2.Prepare a bench warrant as directed by the court.
3.Obtain an order of the court forfeiting bond.
4.Refer to accounting procedure for disbursement of bond. "
Committee members also agreed a new section addressing cash bonds should be included as follows:
"Bond Forfeiture - Cash Bonds.
1.Prepare a bench warrant in UCIS and order for forfeiture when directed by the court.
2.Disburse funds in accordance with court order. "
Committee members agreed current Section C regarding Recognizance Bonds would be deleted.
Following further discussion, Committee members tentatively adopted the proposed revisions (see Appendix B) regarding redesignated Section C (Other Pre-trial Release Conditions), with the following changes:
-Proposed Section C(1) was modified to refer to release "conditions", rather than release "orders".
-Proposed Section C(2) was modified to read: "File original order."
-Proposed Section C(3) was modified to require delivery of a copy of the order to "law enforcement", rather than to the sheriff.
Committee members agreed proposed Section C(4) would not be adopted unless there is a specific statutory requirement.
Committee members agreed current Section 3.9 (Hearing/Trial) would be deleted as the proposed revisions contemplate.
Following discussion, Committee members tentatively adopted the proposed revisions to current Section 3.10 (renumbered in the revisions as 3.9) with the following changes:
-Proposed Section A(1) was modified to read: "Enter results in UCIS. Print necessary disposition form.
-Proposed Section A(5) was modified to read: "Notify DOT of driving offenses."
-Proposed Section B(2) -?- was deleted.
Committee members then turned to a review of remaining current sections.
3.11 - Search Warrants
Committee members agreed Section A should be modified to read: "Indicate the date and time received." No other changes were identified.
3.12 - Court Records of Deferred Imposition of Sentence
Committee members agreed Section A should be modified to insert "if applicable" after "conviction." It was also agreed that the note should identify the parties who have access to the records and that a reference to Trial Court Administration Policy 505 should be included.
3.13 - Post-Conviction: Applications for Relief by Defendant
Committee members agreed the full text of the Note, which describes the clerk's responsibility to inform the defendant of the availability of appointed counsel, should be set out in bold print.
3.14 - Revocation of Probation
Committee members agreed Section B should be modified to refer in the first sentence to "filing" a criminal case, rather than "opening" a criminal case. It was also agreed that the sequence of the two sentences should be reversed.
Election Procedure Section
Committee members then reviewed the election procedure section of the manual. There were no suggested changes.
Procedures for Group Files
Committee members next reviewed the section of the manual regarding procedures for group files and miscellaneous documents.
6.1 - Group Files Being Maintained
With respect to Section 6.1, it was moved by Doug Johnson, seconded by Ted Gladden, and carried unanimously that references to files associated with a non-clerk function be deleted.
Staff noted that there are limited circumstances under which wills may be filed with the clerk. He said an explanation would be included in the section.
Paulette Reule suggested that bankruptcy discharges and notices should not be maintained separately if there is a related civil file in the clerk's office. Judge Nelson said bankruptcy discharges and notices may be received by the clerk when there is no related civil file or the related file is unknown. Committee members tentatively agreed references to bankruptcy discharges and notices should be deleted from the list of group files.
6.2 - Procedure for Group Files and Miscellaneous Documents
Committee members agreed Section A should be modified to read: "Date stamp and file documents." Sections B and C would be deleted.
6.3 - Group Files
Committee members agreed file categories listed under Section 6.3, with the possible exception of wills for safekeeping, should be deleted. It was suggested that the reference to wills for safekeeping could be moved to Section 6.2.
In keeping with the deletion from Section 6.1 of files related to non-clerk functions, Committee members agreed the following sections should be deleted: 6.4 (Cemetery License - Burial Transit Permits), 6.5 (Coroner's Certificates), 6.7 (Passports), 6.8 (Filing of Veterans Discharge - DD 214), 6.9 (Birth Certificates), 6.10 (Death Certificates), and 6.11 (Fetal Death Registration).
With respect to Section 6.6 (Abandoned Property), Committee members agreed the reference to a "person" holding property should be changed to "clerk" holding property.
With respect to Section 6.12 (Trusts), Paulette Reule said trusts are generally not maintained in a separate group file; they are filed in sequence with other civil cases. Committee members agreed Section 6.12 should be deleted.
Chair Nelson said the revised sections would be prepared for review at the Committee's next meeting.
There being no further business, the meeting was adjourned at 2:30 p.m.
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Jim Ganje, Staff