|Members Present |
Judge David Nelson, Chair
Kay Newell Braget
|Members Absent |
Judge Debbie Kleven
Chair Nelson called the meeting to order at 9:00a.m. and drew Committee members' attention to Attachment B (November 19, 2002) - minutes of the June 13, 2002, meeting. The minutes were approved without objection.
Method of Responding to Clerk Inquiries
Staff drew attention to Administrative Rule 46, which provides in Section 3E that the Office of State Court Administrator and the Clerk of the Supreme Court are required to provide advice and information to clerks of court concerning application of statutes, rules, policies, and procedures governing clerk services. He said many times questions asked by clerks involve a procedure, or lack thereof, in the Clerk of Court Manual and would likely be a matter for consideration by the Committee. He inquired whether a proposed answer to a clerk's question should be distributed for review by Committee members, both to highlight the issue as possibly one for future Committee consideration and to ensure that the advice to be given is a reasonable interpretation of any applicable statutes, rules, policies, or procedures. After discussion, Committee members agreed that, in light of the rule responsibility of the Office of State Court Administrator and Clerk of the Supreme Court, the advice should be provided directly and the response reviewed by the Committee as it develops procedures for the clerks of court.
Issues Submitted for Review and Discussion
Chair Nelson drew attention to Attachment C 1- 4 (November 19, 2002) - questions regarding various procedures submitted for Committee discussion.
With respect to Attachment C-1, Paulette Reule noted two questions for discussion: 1) the method of notification for failure to satisfy a judgment arising out of damages involving the use of a motor vehicle (N.D.C.C. §39-16.1-03), and 2) whether a separate file should be opened and a filing fee assessed when a party seeks a divorce after a decree of separation has been granted. With respect to the first issue, she noted that the statute requires the clerk to notify DOT if a judgment is not satisfied but there is no form supplied by the department by which the notice ("certificate of facts") can be provided. She said personnel at the drivers license division indicated little interest in receiving a form notice and less interest in providing a form for clerks to use. She said one alternative may be to simply provide the division with a certified copy of the judgment in place of a notice form, but some judgments do not provide the information needed by the division. For example, she said, the division recently informed an attorney who submitted a copy of a judgment that the court must submit the information, which must include the date of the automobile accident and other details. She said division personnel also indicated that simple correspondence from the clerk will satisfy the statutory requirement for notice. Deb Simenson provided a copy of the notice used by her office.
Paulette Reule said a related question is whether the "notice" is also required with respect to small claims judgments involving motor vehicles which are not satisfied.
Staff noted that the statute refers to failure to satisfy "any" judgment, which would seem to include small claims judgments. Judge Nelson agreed the notice requirement would likely apply to small claims judgments.
In response to a question from Paulette Reule, Committee members agreed a form for use in these situations should be made available. As a general matter, Judge Nelson suggested that any forms included in the clerk manual which are not also in UCIS could be provided on disk so they are more accessible. Kay Braget said it would useful if UCIS procedures included a simple notice event and tickler so a clerk could use the event function and generate a notice form at the appropriate time. Doug Johnson wondered whether there could be a beginning question on the UCIS judgment screen, such as "does this involve a motor vehicle accident?", which if answered "yes" would automatically generate the form.
It was moved by Kay Braget, seconded by Deb Simenson, and carried unanimously that the Committee request that the certificate of facts be placed on UCIS as a notice form and also request that an event code and tickler be created to enable the notice to be generated within 30 days after failure to satisfy the judgment.
It was moved by Paulette Reule, seconded by Deb Simenson, and carried unanimously that Section 2.14 in the Manual Civil Section be modified to clarify that the notice requirement pertains to any judgment, civil or small claims, that remains unsatisfied after 30 days; that paragraph A be modified to refer simply to a certificate of facts notice with information required by statute; and that paragraph B be modified to require only that the certificate be sent to the driver's license division.
Committee members next discussed the second question presented in Attachment C-1: whether a separate file should be opened and a filing fee assessed if a party requests a divorce after a decree of separation has been granted. Paulette Reule wondered whether there is a certain timeframe within which a person who has been granted a separation may go back into that same action and request a divorce. Kay Braget drew attention to NDCC Section 14-05-29, which provides that either party to a separation decree may apply to the court to have the decree revoked. The statute further provides that if the court finds after a hearing that reconciliation is improbable, the court must revoke the separation and, in lieu of that decree, grant the parties a divorce.
Deb Simenson noted that her office has responded both ways - opening a new file or staying within the same file - depending on what the attorneys request. She said if the attorney files a new summons and complaint and submits the filing fee, then a new case is opened. If, she said, the attorney simply submits an amended judgment moving from separation to divorce, then the existing file is used.
With respect to the filing fee, Committee members agreed there would be no filing fee for a motion filed under Section 14-05-29.
It was moved by Paulette Reule, seconded by Doug Johnson, and carried unanimously that the Committee recommend to the State Court Administrator that the filing fee schedule be modified to reflect that there is no filing fee for a motion filed under Section 14-05-29.
Doug Johnson noted a similar file question regarding domestic violence protection orders in which the order is set to expire but there is a desire to extend the time of the order. He said the question is whether the petitioner must file a new action (new file) to extend the order or whether the original order can be modified through a Rule 3.2 motion (remains in existing file). He said some domestic violence advocates support starting a new action because it is, in their view, a cleaner process. Judge Nelson said his practice is to inform the parties that if they want to modify the order, they must file an appropriate motion. That process, he said, must be done in a timely manner because once the order expires the case is closed for jurisdictional purposes.
In response to a question from Chair Nelson regarding a possible solution to the issue, Doug Johnson suggested that any extensions or modifications to a protection order should remain in the same file as the original order. Additionally, he said, there likely should be some procedures identified for how parties are able to submit a request for an extension or modification to the court. Paulette Reule observed that there is a question concerning what constitutes an "open" file. She noted that when an order is entered, the file is for most purposes "closed". Deb Simenson suggested there is too little clarity on the issue at this point to include a provision in the clerk manual. Judge Nelson said it may be helpful to contact Bonnie Palecek's group to discuss ways of addressing the matter.
It was moved by Doug Johnson, seconded by Deb Simenson, and carried unanimously that Committee recommend to the State Court Administrator that the Council on Abused Women's Services be contacted to discuss the issue.
Discussion then turned to Attachment C2 (November 19, 2002), which requests discussion of the possibility of instituting service by first class mail, rather than personal service. The issue has arisen most often with respect to order to show cause hearings regarding failure to pay child support. Staff noted that this issue has been discussed by the Council of Presiding Judges and was discussed at one point by this Committee's predecessor. Practices in this area, he said, differ among the judicial districts. He said the preliminary question is whether the matter is one that can be resolved by a clerk procedure or whether it requires that a policy be adopted by some other entity. Judge Nelson said his practice in child support cases is to have the clerk send papers by first class mail at the outset, but if the party does not appear for the hearing then service is done by the sheriff. Most people, he said, appear so the matter is resolved with the use of first class mail. It is a matter, he said, that is driven largely by the judge's approach to service requirements, rather than being an issue for clerk procedure.
Doug Johnson said a similar service issue has arisen with respect to various proceedings in juvenile court cases.
It was moved by Paulette Reule and seconded by Kay Braget that the Committee recommend to the Council of Presiding Judges that service by first class mail under Rule 5 be permitted for notices of hearings with respect to the enforcement of child support judgments and criminal judgments.
Doug Johnson reiterated that he would like the approach extended to juvenile court proceedings. He suggested that after service of the original pleadings, service by first class mail of any subsequent notices should be permitted.
It was moved by Doug Johnson that the motion be amended to include service by first class mail in juvenile proceedings. The motion died for lack of a second.
After discussion, the original motion carried unanimously.
Chair Nelson next drew attention to Attachment C3 (November 19, 2002) regarding an inquiry from Municipal Judge Tom Davies concerning fees and guidelines for municipal court record searches. He inquired whether the question was a matter to be addressed in the clerk manual or regarding which the Committee should provide guidance. Deb Simenson said it is probably not an issue for the Committee to address directly, but municipal courts do often have differing approaches to records access.
Judge Nelson noted that in the past he had served as municipal judge for three cities and each had its own records management process.
After discussion, Committee members agreed the question is one for municipal courts to decide and that if further guidance is desired municipal court personnel could be referred to Administrative Rules 41 and 47 for review in developing their own policies.
Committee members then reviewed Attachment C4 (November 19, 2002) - a question from Dough Johnson regarding whether clerks could obtain the creditor's signature and sign the Affidavit of Identification in smalls claims cases in advance. He said the practice is followed in some counties so the plaintiff is not required to return to courthouse to process the affidavit if the plaintiff prevails in the case.
Staff noted that Form 9, the Affidavit of Identification of Judgment Debtor, in the current small claims forms provides that "after trial and decision by the Court" the creditor must fill out and sign the affidavit and have it notarized. In that respect, he said, the form requirements conflict with the practice of having those things accomplished before the proceeding and decision by the court.
Paulette Reule suggested that Form 9 be modified to remove the "after trial and decision" requirements. She said there is no particular reason why the creditor could not complete the form and then have it available in the event the creditor prevailed in the case.
It was moved by Paulette Reule, seconded by Deb Simenson, and carried unanimously that Form 9 be modified in the manner described.
Because clerks obtain small claims forms from a variety of printers, Committee members agreed staff should inform clerks of the change so they could request modifications to the forms by their respective printers.
As a preliminary point of discussion relating to the Committee's review of the clerk manual, Chair Nelson drew attention to Attachment D (November 19, 2002), which requests discussion of the prospect for combining the clerk manual and the UCIS procedural manual.
Paulette Reule observed that the UCIS manual, which provides procedures for entering court events into the court information system, details every step a clerk must go through in entering judgment data, for example, into the system. She said the manual is modified each time a change in procedure is requested and agreed upon. She said the goal is to use the UCIS manual as a training mechanism for all clerks. With respect to the clerk manual, she said there are several procedures that have been distributed to clerks by the office of state court administrator that should be, but are not, included in the manual. She drew attention specifically to a memorandum to clerks of court from Ted Gladden regarding how FAXed orders are handled under Rule 2.2 of the Rules of Court. She said it is important that all procedures affecting clerks be assembled in one place.
In response to a question from Chair Nelson regarding the desirability of somehow integrating the clerk manual and the UCIS manual, Paulette Reule said integrating the two would make the clerk manual more effective and better used. Kay Braget agreed there could be advantages to combining the two so that the mechanics of data entry under the UCIS manual are more clearly related to the other procedural elements contained in the clerk manual. Doug Johnson suggested the possibility of including cross-references in the clerk manual to parts of the UCIS manual, rather than actually attempting to combine the two manuals. Deb Simenson agreed..
It was moved by Paulette Reule that the UCIS Committee be requested to review the feasibility of integrating the clerk and UCIS manuals, beginning with the civil and criminal sections. The motion died for lack of a second.
It was moved by Doug Johnson that separate manuals be maintained but that the clerk manual be modified to include appropriate cross-references to applicable procedures in the UCIS manual. The motion died for lack of a second.
It was moved by Kay Braget and seconded by Paulette Reule that she be authorized to contact UCIS support staff to determine what might be entailed in integrating the General section of the clerk manual and the Case Maintenance section of the UCIS manual, with a report back to the Committee.
After discussion, the motion carried (3 yes, 2 no).
Chair Nelson drew attention to Attachment E (November 19, 2002) - a letter from Annetta Anderson, Bowman County Clerk of Court, regarding suggested inclusions in the clerk manual, and Attachment F (November 19, 2002) - general and civil sections of the clerk manual. He said the manual sections would be held over for review at the next meeting and Annetta Anderson's suggestions would be addressed as the applicable manual sections are reviewed.
Chair Nelson said the Committee would have to meet more frequently than during Judicial Conferences if review of the clerk manual and associated issues is to be completed in a timely fashion. Committee members agreed the Committee should attempt to meet at least every other month, beginning in January 2003. Chair Nelson said Committee members would be polled regarding possible meeting dates and a meeting schedule would be assembled based on responses.
In response to a question from Paulette Reule, Committee members agreed clerk members should contact clerks in their respective areas concerning possible changes to the clerk manual.
There being no further business, the meeting was adjourned at 12 noon.