Chair Nelson called the meeting to order at 9:00 a.m. and drew Committee members’ attention to Attachment B (September 19, 2003) – minutes of the July 11, 2003 meeting.
IT WAS MOVED BY JUDGE KLEVEN, SECONDED BY PAULETTE REULE, AND CARRIED UNANIMOUSLY THAT THE MINUTES BE APPROVED.
Issues for Discussion
Staff noted a question recently received from a clerk concerning N.D.C.C. Section 12-59-12, which requires notice to the state's attorney and judge when a parole hearing is scheduled for an inmate; the notice also requests comments. A notice is also sent when an inmate is released. He said the question is how to maintain these notices and any comments provided by the judge. Some judges, he said, direct that the information be placed in the criminal file.
Jude Kleven observed that if comments are submitted, that information should be included in the criminal file.
Paulette Reule said that when she receives the notices, she forwards them to deputy clerks so hearings can be scheduled regarding any outstanding child support or fine obligations. She said she would prefer to leave it to the judge’s discretion to determine whether the notices and information should be included in the file.
Judge Kleven suggested that if the statute requires notice to the clerk, then the information should be filed. If, she said, the notice is sent only to the judge, then the information could be filed at the direction of the judge. Committee members agreed.
In response to a question from Paulette Reule, Committee members agreed the notice should be receipted and placed on the left-hand side of the file. In response to a question from Judge Kleven, Committee members agreed the same procedure should be followed for both the notice of hearing/request for comment and the notice of inmate release.
Paulette Reule said clerks also receive notices when a sex offender is released and moves into the area. She asked whether the same procedure should be followed with respect to these notices.
In response to a question from Judge Nelson concerning how long documents on the left side are retained, Ted Gladden observed that in clerk management review reports clerks have been instructed to dispose of all documents on the left side when the case is closed.
In light of that suggested approach, Committee members agreed the sex offender notices should be filed on the right side so the information is available even if the case is closed.
Committee members next reviewed Attachment C (September 19, 2003) – an email from Paulette Reule regarding file dates with respect to change of venue and procedures for return of exhibits.
With respect to changes of venue, Paulette Reule explained that with change of venue on UCIS, a case moves from one county to another fairly easily. She said her staff sometimes changes all dates with respect to the case to the date received from the other county. She questioned whether that is the correct practice. Committee members agreed the clerk in the new county should reflect a received date, but all other dates should remain as in the original filing.
With respect to disposing of exhibits, staff noted that Section 1.18( C) of the General Section refers the clerk to Rule 6.4 of the Rules of Court, which generally provides that the clerk retains the exhibits unless directed otherwise by the judge. Committee members generally discussed the need for a general use form for disposing of exhibits.
Kay Braget said she prepares an order for the judge that identifies how a particular exhibit is to be handled. Deb Simenson said her office prepares an order after the time for appeal has ended notifying the parties to claim exhibits within 60 days. If they do not, she said, an order is obtained from the judge authorizing disposal of the exhibits. Kay Braget provided a copy of the form used in her district.
Staff noted that the 60 day time period mentioned in Rule 6.4 relates to large exhibits. For all other exhibits, he said, there appears to be no timeframe within which parties must claim exhibits.
After discussion, Committee members agreed Section 1.18( C) of the General Section should be expanded to provide that after 60 days, the clerk will prepare, for the judge, an order of return itemizing the exhibits to be returned. It was agreed the judge could then review the list and determine if any exhibit should be retained by the clerk. Paulette Reule suggested including a receipt portion of the order so parties can sign when exhibits are claimed. She noted that the receipt and destruction order are included in one form in her district. Committee members agreed the notice, destruction order, and receipt should be incorporated in one form.
As an additional item for discussion, Paulette Reule noted instances in which a notice of entry is received and a copy of the judgment, findings, and other documents are included. Most often, she said, such notices are received from the Attorney General’s office. She said the additional documents are already in the file and inquired what, as a general practice, should be done with the copies provided with the notice of entry.
Deb Simenson said her office discards the extra copies and registers only the affidavit and notice of service.
Judge Nelson said if an attorney is involved, the attorney’s certification on the affidavit indicates the attached documents are the documents of the case. However, he said, if a pro se litigant is involved, it may be wise to confirm the documents are the same.
In response to a question from Paulette Reule, Judge Nelson suggested if a clerk receives the extra documents, the clerk could compare them with the documents in the file and determine whether they are the same. If they are, he said, the documents could then be discarded. Committee members agreed such a procedure should be included in the General Sections.
Clerk Manual Review – General and Civil Sections
Chair Nelson next drew attention to Attachments D and E (September 19, 2003) – comments concerning the revised General and Civil sections submitted by Paulette Reule and Becky Absey, respectively. Both attachments suggest additional changes or points of discussion for the revisions previously adopted by the Committee.
1.1 – Separate Case File Series
With respect to the inclusion of “termination of parental rights” and “abortion control” cases within the “Confidential series” (Section 1.1C), Committee members discussed the circumstances under which the two actions would be confidential.
Staff noted that if either action occurred in juvenile court, then the records would be confidential since juvenile court records, by statute, are confidential.
Judge Nelson recalled an instance in which there was a motion for termination of parental rights at the end of a divorce trial and the motion was a part of the divorce file. He questioned whether the termination issue would render the entire divorce file confidential.
Following discussion, it was agreed that termination of parental rights and abortion control cases would not be included separately in the Confidential series.
After review of suggested revisions to Section 1.1 set out in Attachments D and E, Committee members tentatively adopted the following additional changes:
- Section 1.1C was modified to refer to “Confidential/Restricted” records (see Attachment E, Comment 1); the reference to mental health actions was modified to refer to “civil commitments”; and the last sentence was modified to clarify that court orders in domestic violence protection cases and certain restraining order cases are not confidential and to include a reference to Administrative Rule 41.
1.2 - Case Numbering
Ted Gladden noted that the numbering system was based on the idea that clerks would begin renumbering with each calendar year. He suggested language to that effect should be included in the section. After discussion, Committee members agreed the opening paragraph of the section should be modified to include the following: ‘At the beginning of each year, sequential numbering begins with “0001”’.
1.3 – “Received” and “Filed” Papers
With respect to the suggested deletion in Attachment D of language in1-5 under “Received papers include”, Kay Braget questioned the need to retain (6) – copies of documents attached to an affidavit of service assuming the originals are in the file.
Judge Nelson asked whether the items deleted would be filed on the right side if they are not included in the “received papers”. Paulette Reule said her suggested deletion is to indicate that these papers should not be included in the case file.
Judge Kleven noted that (3) – copies of documents for which the court is not the primary office of record – would likely include the previously discussed parole notice. She said “received papers” should identify what should be on the left side and eliminate all else. Doug Johnson noted that the “Received Papers” section simply identifies examples of documents that would be a received paper (retained on the left side). Ted Gladden emphasized the need to ensure that most documents on the left side that are not needed are purged from the file.
Judge Kleven said the aim then is to possibly list those documents to be filed and retained permanently and those documents that are retained for only the short term.
Staff noted that if the objective is to purge documents on the left side when the case is closed, then the current language in Section 1.3A (received papers do not have “long term” retention value) would need clarification to ensure the retention value coincides with case closing.
After discussion, Committee members tentatively adopted the following additional changes to Section 1.3:
- Section 1.3 A and B were modified to change “long term retention value” to simply “retention value” – to distinguish between filed papers, which have retention value, and received papers, which do not.
- Section 1.3A was modified to provide that received papers are tickled for disposal after the end of the appeal period.
- The listing under “Received papers include” was modified to make the deletions in 1,2,4, and 5 reflected in Attachment D, and to delete 6.
1.4 – File Stamping – Time Standards
There were no additional changes for this section.
1.5 – Papers Filed by FAX – Orders and Warrants
There were no additional changes for this section.
1.6 – Procedures for Case Papers with Errors
There were no additional changes for this section.
1.7 – Procedures for Placing Case Papers in the File Folder
Committee members agreed new Section 1.7E should be further modified to require noting case paper location in UCIS Case Notes (see Attachment E, Comment 4).
1.8 – Case Papers Kept Separately from the File Folder
There were no additional changes for this section.
1.9 – Access to File Folders by Non-clerical Personnel
After discussion, Committee members tentatively adopted the following additional changes:
- Reference to “folder” was deleted from the caption.
- Section A was deleted.
- Section B was revised to read: Confidential files can be reviewed in the clerk’s office only by persons allowed access (see Section 11, Confidential Records).
- References to “folder” were replaced with “file”.
- The reference to “except for confidential files” and the last sentence in B(3) were deleted.
-Section C(4) was deleted.
There were no additional revisions for Sections 1.10 (Court Seals and Other tamps),1.11 (Change of Venue), and 1.12 (Procedures for Mailing Official Court Records).
1.13 – Procedures for Making Copies of Court Records
After discussion, Committee members agreed the parenthetical reference in B(3) to deputy clerks not exemplifying should be deleted.
1.14 – Consolidation of Cases
There were no additional revisions for this section.
1.15 – Keep Files in Numeric Sequence
After discussion, Committee members agreed the first paragraph should be revised to read: “Keep active and closed files, except for traffic cases, together to save space in the office.” It was also agreed that the last paragraph concerning guidelines for traffic cases should be retained with the following additional language: “Do not create a hard copy record for electronic traffic citations.”
1.16 – File Folder Specifications
After discussion, Committee members adopted the following additional revisions:
- 1.16C was revised to provide an additional folder will be used if the case folder becomes more than two inches thick (see Attachment E, Comment 7).
-1.16E was modified to delete the third sentence regarding fastener positions (see Attachment E, Comment 8). The fourth sentence was revised to refer to fasteners being no larger than two inches in capacity, rather than length.
1.17 – Filing Equipment
After discussion, Committee members agreed 1,17C should be deleted as reflected in Attachment D.
1.18 – Exhibits
With respect to whether an exhibit list should be kept, Kay Braget said a list is sometimes helpful in large, complicated cases.
Judge Nelson and Judge Kleven said their recorders maintain the exhibit lists. They agreed that if a clerk is in the courtroom, the clerk should maintain the list. Committee members agreed exhibit lists should be retained.
Kay Braget suggested deleting the reference in A(9) to “Date Judgment Filed”. Committee members agreed. Committee members also agreed “Received” and “Offered” in A(9) should be reversed in order.
There were no additional revisions in remaining sections 1.19 – 1.24.
Committee members then reviewed comments in Attachments D and E regarding the revised Civil section.
2.1 – Introduction
Committee members agreed the sentence in the second paragraph regarding the calendar card being the control record should be deleted (see Attachment E, Comment 9).
2.2 – Procedure
After discussion, Committee members agreed Section 2.2 should be further revised as suggested in Attachment D, and a reference to petitions should be included in the opening paragraph as suggested in Attachment E, Comment 10.
2.3 – Filing of Subsequent Documents
After discussion, Committee members agreed Section 2.3B should be further revised to read: “Pleadings, such as motions, certificates of readiness or non-readiness, demands for change of venue, and demands for change of judge should be forwarded to the appropriate person as provided by local practice.”
2.5 – Case Disposition
There were no additional revisions for this section.
2.6 – Closing Procedures for Old or Inactive Cases
Committee members agreed the section should be further modified as follows:
-2.6(d) was revised to include a reference to court personnel with respect to entering the event code.
-2.6(e) was revised to replace “counsel” with “attorneys” in the last sentence.
There were no additional revisions for Sections 2.7 (Money Judgment Docketing) and 2.8 (Vacated Judgments).
2.9 – Judgment Docketing/Foreign Judgments
Committee members agreed that, in light of recent statutory changes, the requirement in the Note that judgments must have an affidavit identifying the creditor should be deleted.
There were no additional revisions for Section 2.10 (Transcript of Judgment – Incoming Judgments).
2.11 – Satisfaction – Cancellation
Committee members agreed Section 2.11B should be further revised to read: “Satisfaction must be signed by the creditor or creditor’s attorney. Satisfaction cannot be transcribed from another county.”
2.12 – Transcript from Judgment Docket (Outgoing Judgments)
After discussion, Committee members agreed Section 2.12 should be further revised as follows (see Attachment E, Comments 16,17):
-2.12B was modified to replace “transcripts” with “transcript”.
-2.12E was retained and modified to read: “Enter date notice of filing of transcript from the other clerk of court in register of actions.”
2.13 - Execution
Committee members agreed revised Section 2.13C should be further modified to delete “Keep a copy for the file” (see Attachment E, Comment 18) and to delete the reference in revised Section 2.13F to entering any principal amount by updating the judgment in UCIS.
There were no additional revisions for Sections 2.14 (Certificate of Unsatisfied Judgment) and 2.15 (Garnishment Judgments).
2.16 – Bankruptcy
With respect to the suggestion in Attachment D that unsatisfied judgments should be flagged so no enforcement actions could be taken, Paulette Reule noted there is no indicator in UCIS that a bankruptcy petition has been filed. She wondered how a clerk should respond if an attorney requests an execution on a judgment when a bankruptcy is pending. Judge Nelson noted that if an attorney attempts to execute on a judgment subject to bankruptcy, the attorney may be subject to sanctions. He said it is highly unlikely that the clerk would be subject to any penalty for issuing an execution requested by the attorney.
2.17 – Renewal of Judgments
After discussion, Committee members agreed the 2nd paragraph of Section 2.17 should be further modified to provide that the renewal date and docket time would be indicated “on UCIS”, rather than on the judgment docket card (see Attachment E, Comment 19).
Miscellaneous Issue – Dogs as Public Nuisances
Paulette Reule drew attention to actions concerning dogs as public nuisances and wondered whether there should be a procedure to handle such cases.
Judge Kleven noted there has been a recent increase in dog cases being “filed” in district court, most likely due to information provided at a recent sheriffs’ education seminar. Currently, she said, every time a problem with a dog occurs outside the Grand Forks city limits, the person is told to write a letter to the district judge. Judge Nelson said he would prefer a general file for clerks, in which dog cases could be placed and purged on a regular basis.
Staff noted that a procedure for clerks would be useful if the clerks are receiving the complaints about the dogs. If the complaint is sent to the judge as the statute provides, he said, then the procedure would have to ensure that the judge forwards the complaint to the clerk so the procedure can be followed. Paulette Reule said the only time her office receives anything is if a judge issues an order. She said a group file would probably be preferable for maintaining such orders.
Judge Nelson said some kind of index is needed so the first complaint can be found if a 2nd complaint – which triggers court action – is subsequently submitted. Judge Kleven suggested that a case should not be opened in UCIS unless there is a summons and a hearing scheduled.
Following discussion, Committee members identified the following general procedure: (1) if a complaint is received, a notice is generated notifying the complainant of the $10 filing fee; (2) the complaint and notice must be placed in a group file; (3) if a subsequent complaint is received, a summons will be issued and the case opened in UCIS. Staff will prepare a draft procedure for placement in the Group Files section.
Committee members next reviewed Attachment F (September 19, 2003) – the revised Criminal section of the manual.
After discussion, Committee members identified the following additional revisions:
-Section 3.4: the 1st sentence in the opening paragraph was revised to read: “At first appearance, the defendant’s rights are explained, the defendant is informed of the charges and custody issues, and bond is determined.”
-Section 3.7: The overstrike was removed from “continued” in the opening paragraph. Revised Section 3.7A was further modified to provide that continuances “must”, rather than can, be tracked.
-Section 3.9: the opening paragraph was revised to replace “pleas” with “plea”, to replace “ICIS” with “UCIS” in A(1), and to require in A(5) notifying DOT of driving offense convictions.
Committee members then reviewed Attachment G (September 19, 2003) – revised Group Files section.
Staff explained the new Note included in section 6.1, which describes the two circumstances in which wills might be deposited with the clerk. Paulette Reule wondered whether a probate file should be opened and then closed when the clerk receives a will. Kay Braget noted that banks in her area quite often bring wills to the clerk even if someone is designated in the will to receive it.
With respect to section 6.2 (Procedure for Group Files and Miscellaneous Documents), Committee members agreed the underscored language should be revised to read: “Wills: Receive fee, if applicable, assign a number, index and file.”
There were no additional changes for the remainder of the Group Files section.
Committee members next reviewed Attachment H (September 19, 2003) – Probate section of the manual, followed by a revised probate section submitted by Paulette Reule.
Paulette Reule explained that her revisions, upon which Committee members focused, incorporated parts of Trial Court Administration Policy 505 regarding probate procedures for clerks. Committee members agreed that, as a general matter, Policy 505 procedures should be included, with source references to the policy.
With respect to proposed section 7.2, Kay Braget said if clerks thoroughly understand the general and civil procedures, it should not be necessary to include a directive to file stamp all documents or to use the next pre-numbered “P” file. Committee members agreed the noted language should be deleted. It was also agreed that the following paragraphs in proposed section 7.2 relating to informal and formal probate should be left unchanged as they are verbatim renditions from Policy 505.
Paulette Reule noted there is no current procedure regarding demand for notice and proposed section 7.3 is a suggested procedure. Committee members agreed the demand for notice, when received, should be maintained in a group file if there is no probate filed.
Judge Nelson wondered whether, in light of recent rule changes, it is necessary for the clerk to have the affidavit of mailing notarized.
Paulette Reule said the probate proceedings checklist contained in proposed section 7.4 was included in information distributed during a seminar conducted by Judge Kleven. It is useful, she said, with respect to the clerk’s authority to sign probate letters. Judge Kleven said the information was provided to give clerks a general awareness of the probate process, but it is probably not necessary to include the entire checklist in the manual.
Committee members agreed the checklist could be limited to those items most useful with respect to the scope of authority given to the clerks, e.g., Sections V (Applying for informal probate), VI (Proof and Findings), and VII (Priority of Appointment). Judge Kleven said she had assembled a one or two page short checklist that may be more useful.
Kay Braget distributed additional revisions for the remainder of the probate section, which will be reviewed at the next meeting.
Paulette Reule noted that her proposed sections 7.5 and 7.6, also from Policy 505, would be included in the Guardianship/Conservatorship section of the manual.
Future Meeting Schedule
Chair Nelson said the next meeting would likely be in January or February 2004. He said a list of future meeting dates would be circulated for review.
There being no further business, the meeting was adjourned at 2:20 p.m.