Committee on Trial Court Operations
Radisson Hotel, Bismarck
May 13, 2005
Judge David Nelson, Chair
Judge Debbie Kleven
Kay Newell Braget
Chair Nelson called the meeting to order at 2:15 p.m.
Expungement - Draft Policy
Staff distributed and reviewed a draft policy regarding expungement of court record information. He noted that the Committee had previously discussed the uncertainty concerning the meaning of "expungement" under certain statutes and policies and had referred the question to the Administrative Council for direction concerning whether a rule or policy should be developed and what the scope and meaning of expungement should be. He said the Administrative Council reviewed the issues outlined by the Committee and after discussion referred the matter back to the Committee for development of possible alternative approaches. The draft policy and related Administrative Council minutes are attached as an Appendix.
Staff explained that the draft policy, in Section 2 (Definition), sets out two alternative approaches to a general definition. The first definition, he said, follows the common understanding of "expungement", i.e., the complete removal and destruction of record information. The second alternative, he said, follows a slightly different approach in permitting the retention of non-identifying record information for statistical purposes.
Deb Simenson said her office receives very few inquiries or requests concerning expungement of records. She said it would be preferable that the entire paper record be expunged when necessary, rather than retain some portion of the record for statistical purposes.
Ted Gladden noted that all record information is now maintained on the court information system and suggested that if statistical information is to be retained, it would be easier to retain the information in its electronic format.
Following further discussion, Committee members agreed the second alternative should be selected, with the added reference to retaining "electronic" record information for statistical purposes.
Staff then reviewed Section 3 of the draft policy, which sets out two alternatives concerning the scope of expungement with respect to particular record types. The first alternative, he said, would provide for the complete removal of record information in which the identified statutes and policy provide for expungement of the record. The second alternative, he said, follows the same general approach but provides an exception for record information pertaining to judgments that have been discharged in bankruptcy. In the case of a bankruptcy discharge, he said, the record information would be expunged but information concerning liens related to the judgment before the date of discharge would be retained.
With respect to judgments discharged in bankruptcy cases, Judge Nelson said it is necessary to retain record information because the judgment may have resulted in a lien on real property the judgment debtor may not even be aware of. He said information concerning service, judgment default, and affidavits of proof should be retained so the existence of a lien that attached prior to discharge can be verified.
Deb Simenson noted previous contacts with her office by attorneys representing debtors and the assertion that all judgment information should simply be "expunged" as the statute requires, which was interpreted to mean complete and total removal of the record information.
Following further discussion, Committee members agreed the second alternative should be selected with the following changes: replace the requirement to expunge with a direction that the judgment record information must be marked "expunged and satisfied", and delete the language concerning the exception permitting retention of information concerning the existence of a lien.
Staff then reviewed Section 4, which addresses the status and contents of a court order directing that a particular record be expunged. The section, he said, would provide that the court order is confidential and must be destroyed immediately following expungement of the record information. He said the section further provides for the retention of non-identifying electronically, stored information concerning the expungement. There were no suggested changes to the draft section.
It was moved by Ted Gladden, seconded by Judge Kleven, and carried that the draft policy, as modified, be approved for submission to the Administrative Council for consideration.
Clerk Manual Revisions - Comments
Chair Nelson then drew attention to Attachment B (May 4, 2005) - comments received by the Administrative Council concerning revisions to the Clerk of Court Manual. Staff recalled that the revisions previously approved by the Committee had been submitted to the Council, which in turn distributed the revisions to clerks of court for comment. He said the Council referred the comments to the Committee for consideration and a final recommendation on manual revisions. He said additional comments were also received from Rebecca Absey, which are included as Attachment C (May 4, 2005).
Committee members then turned to a review of the comments included in Attachment B, beginning with those submitted by Kay Braget.
With respect to the suggestion concerning a procedure for judge case assignments and recusals, Judge Kleven said her district developed a policy and she will forward it for review.
The following remaining comments were reviewed:
Page 1-7, Section 1.7E - suggestion to retain reference to noting location of papers and exhibits "on the register of actions". It was noted that Becky Absey suggested noting the location "on the UCIS file papers/register of actions". Committee members agreed to modify the language to include the reference suggested by Ms. Absey.
Page 1-16, Section 1.16C - suggestion to include reference to color-coded folders. Committee members agreed a new paragraph G should be added to Section 1.16 identifying the requirement for color-coded files and to modify Section 1.1 to include color codes for the various case types.
Page 1-20, Section 1.18C - suggestion to move sample disposition form to end of Section 1. Committee members agreed.
Page 1-25, Section 1.20B - suggestion to delete paragraph 20 regarding jury payroll as it is addressed in Section1.20C. Committee members agreed.
Page 2-3, Section 2.2B - suggestion to remove the overstruck reference to affixing a UCIS label as it is addressed in Section 2.2I. Committee members agreed.
Page 2-7, Section 2.5 - suggestion to change the event code to #893 in subsection (a) and change form name to "Notice and Order of Dismissal"; to change subsection (b) as indicated to provide a procedure for mailing the notice and order, tickling the case for 20 days for receipt of any motions, and dismissing and closing the case if no motions have been received within 20 days; and to delete subsections c, d, and e. Judge Nelson noted the procedure is directed at disposing of cases under Rule 40(e) of the Rules of Civil Procedure. He suggested language be added to proposed (b) providing that if a response is received within 20 days it must be filed and submitted it to the judge for appropriate action. Committee members agreed the suggested changes should be made. It was also agreed that language directing that copies of the order of dismissal be sent to the parties or attorneys should be included in revised subsection (b).
Page 6-7, Section 6.12 - suggested need to address handling of trust registrations. Deb Simenson noted that under Section 1.1A, supervised trusts and trust registration are included under the civil series. She noted that guardianships and conservatorships are included in the probate series. Committee members agreed a reference should be added to the case type listing in Section 1.1. Judge Kleven suggested a direction should be included that trust registrations must be opened as a separate civil file. Committee members agreed.
Page 8-1, Section 8.1 - suggested deletion of the Note concerning Globe Gazette forms. Committee members agreed. It was also agreed that language be included noting that forms are available on the Supreme Court's web site.
Page 14-2, Section 14.3C - suggested deletion of the section regarding mailing of yellow citation copies to DOT in light of the electronic citation process. Deb Simenson noted that even for non-electronic citations, DOT does not want to receive yellow copies because the information is transmitted electronically. But, she said, Game&Fish wants to receive the yellow copies of their citations because citation information is not transmitted electronically. Judge Kleven suggested the possibility of generating a report of citation information to be transmitted to Game&Fish, rather than copies of citations. Committee members agreed Section 14.3C should be modified to provide that for non-electronic citations, copies should be mailed to Game&Fish if appropriate and that citation copies should be discarded and not mailed to DOT.
Page 17-2, Section 17.2D - suggested clarification regarding AR2 requirements concerning demands and orders of assignments for changes of judge. Staff noted that AR2 provides that the presiding judge assigns a different judge, but if that is not possible the matter is submitted to the Clerk of the Supreme Court. Deb Simenson noted that such matters are generally handled by administrative staff rather than clerks. Following discussion, Committee members agreed the provision should be deleted.
Committee members next reviewed a comment submitted by Lynn Hohbein concerning page 3-6 and the provision concerning arraignments. Committee members agreed the current language is satisfactory.
Committee members next reviewed the following comments submitted by Alice Grove:
Page 1-5, Section 1.4C - question concerning whether to include the time of day when documents are file stamped. Deb Simenson said her office does not include time of day when file stamping documents, only the date. Staff said the language simply notes that some courts "prefer" to include time of day received when file stamping. Committee members agreed the sentence is not necessary and should be deleted.
Page 1-5, Section 1.5C - question concerning the applicable filing fee for a document filed by FAX. Staff noted the fee would be the fee directed by statute. He said recent amendments to Rule 2.2 deleted the requirement for a FAX fee.
Page 1.11, Section 1.11A(1)(f) - question regarding whether there is a uniform Acknowledgment of Receipt form. Deb Simenson will forward the form used in her office - and Section 1.11A(2)(b) - question regarding meaning of reference to "receipts". Committee members agreed the "Acknowledgment of Receipt" should be substituted for the noted reference.
Page 2-14, Section 2.12F - request for clarification concerning satisfaction of judgments upon sheriff's return. Staff noted that some years ago an explanation of this issue was sent to all clerks. Committee members agreed further detail should be provided in the Note.
New Child Support Section, page 13 - question concerning whether the procedure set out in the 2nd full paragraph is correct with respect to the clerk mailing notice concerning suspension of professional or occupation licenses if the child support obligor has not complied with the court's order to pay the amount due. Staff noted that the procedure accurately follows the governing statute.
Page 14-4, Section 14.5A(3) - question concerning mailing a copy of the suspension notice and citation to DOT for unpaid traffic citations, when citations are no longer printed. Committee members agreed the qualifier ", if any," should be inserted after copy in the event a copy is generated.
Committee members then reviewed comments submitted by Lenae Roos. Chair Nelson noted generally that comments regarding typographical and citation errors would be addressed by staff.
Page 3-3, Section 3.2D - question whether clarification is needed to ensure "assigned judge" includes a judge assigned to master calendar. Committee members agreed no change was necessary.
Page 3-15, Section 3.14B - suggestion that reference to "new file date" be replaced with "reopen date". Committee members agreed.
With respect to deferred impositions of sentence, it was noted that Ms. Roos suggests including felonies in the procedure set out in Section 3.12. Staff noted that the procedure under Rule 32.1 of the Rules of Criminal Procedure applies only to deferred impositions in infraction and misdemeanor cases. Felonies, he said, would continue to be subject to the procedure provided by statute. Committee members agreed no change was necessary.
Page 5-2, Section 5.1G(Note) - suggestion that the note be relocated to follow Section 5.1D. Committee members agreed.
Page 9-3, Section 9.3C(4) - suggestion that the language would be better placed in Section 9.4D(3) on page 9-5. Committee members noted that Sections 9.3 and 9.4 seem generally to replicate procedures. It was agreed that procedures set out in the two sections be combined to the extent possible.
Pages 9-4, Section 9.4D, and page 9-6, Section 9.5 - suggestions that references to return receipt requested with respect to service of small claims affidavits and answers or counterclaims should include a reference to restricted delivery. Staff noted that the governing statutes require only certified mail.
Page 9-7, Section 9.7 - suggestion that requirement for $80 filing fee when removing a small claims case to district court be made explicit. Committee members agreed. It was also agreed that language should be included indicating that an answer fee is not required.
New Child Support Section, page 17, paragraph (e) - suggested need for clarification of the effect of death of the youngest child on a child support order when other children under 18 are also involved. Judge Nelson said the language in paragraph (e), 2nd sentence, is unclear in meaning. Judge Kleven suggested the language should be modified to read: "The death of a minor child in a per-family support order has no effect on the current child support obligation." Staff noted the language in paragraph (e) tracks language in Trial Court Administration 505. Committee members agreed to defer consideration of any changes pending review of Policy 505.
New Child Support Section, Sample Form 6 - question concerning issuance of a warrant of attachment if the obligor fails to appear following notice of the filing of a foreign support order. Judge Kleven suggested language in the form be modified to provide that a warrant "may be" issued if the person does not appear. Committee members agreed.
Chair Nelson said the remaining comments submitted by Ms. Roos and comments submitted by Becky Absey will be reviewed at the next meeting.
There being no further business, the meeting was adjourned at 5:00 p.m.
Jim Ganje, Staff