Chair Nelson called the meeting to order at 10:00 a.m. and drew Committee members’ attention the tentative 2005 meeting schedule set out on the agenda. Committee members agreed May 13 should be substituted for May 6. With that change, it was agreed the 2005 schedule of meetings would be March 11, May 13, August 19, and October 28.
Draft Procedures - Dogs as Public Nuisance
Staff distributed and reviewed a draft clerk manual procedure to address complaints under NDCC Ch. 42-03 - dogs as public nuisance. He also distributed the procedure followed in Grand Forks, which includes a notice form, instructions for filing the complaint, and a complaint form. Judge Kleven noted that the past practice in Grand Forks County was to act in response to a letter received from the complaining party, with no fee assessed. She said the practice became unwieldy and lacking in uniform process and, as a result, the forms and instructions were developed.
Staff noted that Committee members had previously concluded that the procedure, once developed, would be included in the Group File section of the manual. He said the draft procedure differs two respects from the Grand Forks approach. The first, he said, is with respect to the filing fee: $10 in the draft; $15 in the Grand Forks procedure. He said the $10 fee is based on the general category of other things authorized to be filed with the clerk, for which a $10 fee is identified by statute. The second, difference, he said, is with regard to whether a file is opened when the complaint is initially received. He said the Grand Forks procedure provides for opening a file when the complaint is received, closing the file when notice is sent to the dog owner, and then reopening the case if a second complaint is received. The draft, he said, would not require opening a case file until the second complaint is filed, but an "index" of complaints would be created so the status of the complaint could be monitored. He said the matter would be monitored and the first complaint would be purged if a second complaint is not received within one year.
Judge Nelson said requiring use of the complaint form would simplify matters. Committee members agreed the form should be used, rather than relying on the submission of an informal letter. Committee members also agreed the person complaining about a dog should be contacted and instructed to complete the form. It was also agreed that instructions for filing the complaint, as included in the Grand Forks procedure, should be included with the direction to the person making the complaint.
With respect to Section B regarding the filing fee, Committee members agreed the fee must be submitted at the time the complaint is filed.
With respect to the "tickler" requirement in Section C, Judge Nelson questioned whether the requirement would be necessary if a case file was opened with the filing of the complaint. Committee members agreed the Grand Forks procedure with respect to opening the case should be followed and the tickler requirement, therefore, would be unnecessary. There was also agreement that the case should be closed after notice of the complaint is sent to the dog owner. In response to a question from Deb Simenson, Committee members agreed the case should be reopened, as in the Grand Forks procedure, if a second complaint is received.
With respect to the complaint form, Committee members agreed the caption should refer to "Dog Owner", rather than to "Defendant". Ted Gladden suggested, and Committee members agreed, that the witness line on the form should be deleted.
Committee members agreed the index requirement in the opening paragraph should be deleted, in light of the decision to open and close the case.
Paulette Reule asked whether the forms should be available through law enforcement. Committee members agreed the forms should be provided to law enforcement so they could, in turn, be made available to person complaining about dogs to law enforcement officials.
In response to a question from Judge Nelson, Judge Kleven said the notice to the dog owner is generated from UCIS by the clerk as a "Z notice", custom form.
The revised draft procedures will be reviewed at the next meeting.
Draft Procedure - Overweight Trucks/Extraordinary Use
Staff distributed and reviewed a draft procedure regarding extraordinary use/overweight truck complaints. He said the procedure reflects the Committee's previous conclusion that clerks ought not be in the position of accepting a summons and complaint unless a bond is also received.
With respect to Section B (scheduling a hearing), Deb Simenson said her office does not automatically schedule a hearing, She said the state's attorney handles the summons and complaint, motions, and any stipulations. She said if a hearing is needed, the state's attorney files a motion with the court requesting the hearing. In essence, she said, the clerk simply files the relevant papers and waits for further action by the state's attorney.
Staff noted that a hearing would not be scheduled under Section B unless a summons and complaint is received (Section A).
In response to a question from staff, Committee members agreed language should be added to Section A directing that the clerk cannot accept a bond unless accompanied by the summons and complaint.
In response to a question from Paulette Reule, Committee members agreed that if a person seeks to deposit a bond with the clerk and there is no summons and complaint filed, the person must be directed to the state's attorney, county auditor, or other appropriate county office.
Deb Simenson asked whether notice should be sent to the parties if a hearing is scheduled. She said procedures followed by the state's attorney would likely differ from county to county with respect to notice if the state's attorney seeks a hearing. It was noted that some state's attorneys notify the party if a hearing is scheduled. Committee members agreed it should be left to the state's attorney to provide notice if a hearing is requested.
The revised procedure will be reviewed at the next meeting.
Draft Procedures - Commitment of Sexually Dangerous Individuals
Staff distributed and reviewed a draft procedure for proceedings concerning the commitment of sexually dangerous individuals under NDCC Ch. 25-03.3. He said the procedures are simply a distillation of general statutory requirements.
In response to a question from Judge Kleven regarding the examination report mentioned in the "Postcommitment Hearing" section, staff said the state hospital is responsible for ensuring the report is prepared and submitted to the court.
Committee members discussed how to ensure the yearly examination report is submitted as required and reviewed by the court. Ted Gladden noted that there other required reports, for example annual reports regarding guardianships or conservatorships, that are monitored to ensure they are filed when necessary. Committee members agreed the clerk should tickle the file for receipt of the report and if not received should notify the executive director of the state hospital, the state's attorney, and the respondent. It was agreed a form letter or notice could be developed for purposes of notification.
In response to a question from staff, Committee members agreed the examination report, when received, should be submitted to the judge for a determination of whether a hearing is required.
With respect to paragraph (2) of the Postcommitment Hearing section, Paulette Reule suggested a petition for discharge be presented to the judge for review. Committee members agreed. It was also agreed the language concerning verification that a hearing has been held within the preceding 12 months should be deleted and replaced with a simple requirement that a hearing on the petition will be scheduled as directed by the court.
The revised procedure will be reviewed at the next meeting.
Issues for Review and Discussion
Staff distributed a letter forwarded to the Committee for review by Mike Hagburg, staff of the Joint Procedure Committee. He said the letter, from a Grand Forks attorney, asks whether a procedure can be instituted by which counsel of record are sent notice when an order or judgment is entered. He said the letter mentions that Minnesota clerks send copies of orders and judgments to the parties or counsel.
Judge Nelson noted that if there has been an appearance, parties are entitled to a copy of the judgment. If there is no appearance, he said, there is no rule requirement that the attorneys receive notice or a copy of the judgment.
Paulette Reule said she sends a copy of the order and judgment to the party that prepares the documents. In situations involving money judgments, she said, UCIS will generate a statement of judgment, which will be sent to the attorneys. Deb Simenson said her office does not send copies of the orders and judgments unless they are requested.
Judge Kleven said the particular issue was discussed at a meeting of the Grand Forks judges and it was concluded that requiring a notice in every situation would be too burdensome on the clerk's office. She said a copy of the order or judgment can be sent to the attorney if it requested. Kay Braget agreed that the lawyer should submit a request if a copy is desired.
After further discussion, Committee members concluded no action was necessary in response to the question. The Chair will inform Mike Hagburg of the Committee's conclusion.
Committee members then reviewed three questions submitted by Kay Braget. The first question concerned whether the Committee had selected an exhibit form to be included in the manual for purposes of assisting in the return of exhibits.
Paulette Reule noted that she uses a form that combines a receipt, order, and notice regarding disposition of the exhibits. She said the form is sent to parties after the time for appeal has passed.
After discussion, Committee members agreed the Stark County form and the Grand Forks County form for listing exhibits be included in the manual.
Committee members next discussed the second question, which concerns whether there had been any action regarding question of copies of pleadings being filed. Staff distributed draft amendments to Rule 3.1 of the Rules of Court which are under consideration by the Joint Procedure Committee. The amendments, he said, would provide that the "first submitted version of a pleading or document" will be considered the original. The effect, he said, is that if the clerk receives a copy of a pleading, the copy must be filed.
The third question concerned whether a judge recusal/assignment section should be added to the General Procedures portion of the manual. Kay Braget said it would be helpful to have a procedure so the clerk knows how to respond if recusal occurs.
Paulette Reule observed that how recusals are handled likely differs from court to court. Judge Kleven noted that a procedure was developed in Grand Forks. She said if she recuses from a case, she will file the original with the clerk and forward a copy to the presiding judge. Judge Nelson said he simply mails a copy to the presiding judge.
Paulette Reule said the clerk's involvement is usually limited to simply filing the recusal. Judge Nelson suggested the clerk, upon receiving the recusal, could file the recusal and confirm whether it has been submitted to the presiding judge. If it has not be sent to the presiding judge, he said, the clerk could then forward a copy.
Paulette Reule observed that the clerk is responsible for notifying the parties of the judge assigned to a case. Judge Kleven suggested the clerk should also notify the parties in the event of a recusal and subsequent assignment.
Following discussion, Committee members agreed the Demand for Change of Judge section should be modified to apply to both recusals and demands for change of judge, and that a section be included directing notification of parties regarding assignment of a new judge in the event of recusal.
Staff recalled the Committee's earlier discussion concerning expungement of records, what that concept may mean with respect to certain records, and when expungement must occur. Staff distributed copies of the few current statutes in which there are expungement requirements involving court records. Those statutes, he said, relate to first offense drug possession, bankruptcy, and mental health commitment records. He said there different meanings given to "expungement. Some jurisdictions require deletion from court records of all information except generic, non-identifying information that indicates there was a one time a particular kind of case. Other jurisdictions, he said, follow the more traditional meaning and require deletion of all information pertaining to the particular record. He said there may be some utility, for statistical purposes, of retaining generic, non-identifying record information while erasing all other information from the file and information system. He said the approach to expungement and what it means with respect to the noted records is likely a policy level decision.
Paulette Reule suggested the issue should be presented to the Administrative Council for consideration. She said if a general approach or definition is adopted by the Council, then the Committee can devise a procedure for clerks. Additionally, she wondered whether it is possible or advisable to delete accounts receivable information pertaining to a record that, by statute, is to be expunged. She said there is also a concern about deleting all information concerning bankruptcies. For example, she said the normal practice is to simply note the date the original petition for bankruptcy was filed and leaving it to the attorneys to determine if a particular judgment was discharged. Judge Nelson said that is likely the most acceptable practice. Committee members agreed.
Judge Nelson suggested a separate definition may be necessary with respect to each kind of case.
Committee members agreed Susan Sisk should be asked about the propriety of deleting accounts receivable/financial information with respect to a record that is otherwise "expunged".
After further discussion, Committee members agreed the issue should be presented to the Administrative Council for consideration. It was agreed the submission should outline the problems, identify the relevant statutes, and request consideration of a policy decision regarding the meaning and scope of expungement.
Child Support - Termination in the Event of Adoption
Staff drew attention to an email concerning how child support obligations are terminated when an adoption occurs. He said the question arose in the Southeast judicial district and there was a suggestion for the need to develop a form to ensure the current child support obligation is terminated. He noted that Policy 505 provides for termination of the obligation if a certified copy of the adoption decree is received and filed in the record. He said the email exchange also suggests the clerk could simply terminate the child support obligation on FACSES and explain in the narrative why.
Paulette Reule explained that Judge Paulson is opposed to clerks sending out certified copies of adoption decrees to other clerks. Staff noted there is no exception to the general confidentiality of adoption records which would allow a clerk to send a copy of the decree to another clerk. However, he said, there is statutory authority for child support enforcement units to obtain what would otherwise be confidential record information. Consequently, he said, child support enforcement personnel can likely obtain a copy of the decree from the clerk of court. Deb Simenson said she has typically informed the parties to the adoption proceeding if there is a need to obtain a copy of the decree.
Deb Simenson said the question arises when the adoption occurs in one county and the child support obligation is being paid in a different county. Judge Nelson said the parties should become aware that the child support obligation has not been terminated, in which case it would seem to be the responsibility of the affected party to submit a copy of the decree to the appropriate clerk's office.
In response to a question from Paulette Reule, Judge Kleven said she requires the clerk to obtain permission to make a copy of an adoption decree except when the statute authorizes providing a copy to certain parties to the proceeding.
Committee members concluded the issue could be addressed in the child support section of the manual.
Child Support Section - Revisions
Committee members then reviewed Attachment B (September 13, 2004) - revisions to the child support section submitted by Paulette Reule. Additional revisions were distributed, which are on file with staff.
With respect to Attachment B, Paulette Reule said the draft Index is complete. She asked whether the forms to be included in the section should also be listed in the index. She said there would also be references within the procedures to the applicable forms. She said her draft is based on procedures that have worked well in Stark County, but changes may be necessary based on more common practices elsewhere. She drew attention to the "Motion Procedure for Child Support Collections" in section 12.2, which is the alternative to an order to show cause proceeding. The motion, she said, is signed by the clerk or the clerk's deputy and served by first class mail. If the person does not appear in response to the motion, she said, a bench warrant is issued. She said bond is usually set in an amount equal to 1 or 2 months of the current child obligation. She said if bond is not posted the person is brought in for a bond hearing.
Judge Nelson said he will not issue a bench warrant unless there has been actual personal service. He said service by mail is attempted first, which is successful in most cases, and then personal service is used for those who do not appear in response to service by mail.
With respect to the definitions under UIFSA set out on ppg. 1-3, Judge Nelson said it will be necessary to review the definitions periodically to ensure they reflect any changes to the statutes.
With respect to transcription and change of venue procedures in section 12.2, Committee members agreed the substance of the Attorney General's November 26, 1999, letter should be included where appropriate.
With respect to section 12.2(C)[Registration of Foreign Support Order], staff asked whether a definition of "state" should be included since the statute applies to orders from territories, possessions, and tribes. He said the same may apply to section 12.2(D) regarding foreign custody orders.
There were no significant revisions suggested for the revised procedures. Committee members then reviewed the forms and other information provided as attachments to the revisions distributed at the meeting.
With respect to the directory child support enforcement personnel, Ted Gladden stressed the importance of ensuring that it is kept current. Committee members agreed the directory should be included in the manual but that it be updated on a timely basis.
With respect to the Affidavit of Custodial Parent, Deb Simenson noted that child support enforcement has concluded that when a child turns 18, the clerk must send the affidavit to the parent because the obligor has the opportunity to contest extending the child support.
With respect to the Notice of Registration, Paulette Reule said the accompanying procedures regarding registration are sent with the notice.
With respect to the Notice of Hearing and Motion form, Kay Braget asked whether the manual will recommend this process for enforcing child support collection rather than the order to show cause process. There was general agreement that it would.
With respect to the Affidavit of Mailing form, Committee members agreed it should be changed to a Certificate of Service.
Paulette Reule said the revisions would be reorganized and the attached forms assembled for consideration at the next meeting.
There being no further business, the meeting was adjourned at 2:10 p.m.
Jim Ganje, Staff