Committee on Trial Court Operations
Doublewood Inn, Bismarck
August 19, 2011
Members Present: Judge David Nelson, Chair, Kay Newell Braget Chris Iverson, Judge Debbie Kleven, Cindy Schmitz
Members Absent: Bev Demers, Louie Hentzen
Others Present (Mental Health Commitment Forms Review): Judge John Greenwood, Pamela Crawford, Asst Attorney General, Attorney General's Office, Dr. Lincoln Coombs, Cindy Lien, Sharon Bitz; ND State Hospital
Chair Nelson called the meeting to order at 10:00 a.m. and noted the Committee, as part of its general forms development responsibilities, will be embarking on a review of the current forms used in the mental health commitment process. He welcomed for assistance in the review: Pamela Crawford, Attorney General's Office; and Dr. Lincoln Coombs, Psychologist, ND State Hospital and Cindy Lien and Sharon Bitz, Legal Department, ND State Hospital. Ms. Crawford noted that Dr. Rosalie Etherington, Executive Director of Child & Adolescent Services and Adult Psychiartric Srvs at the State Hospital, would be participating in the forms review as her schedule permits.
After general discussion of the current forms and methods for reviewing the forms, the following preliminary revisions were identified:
- Possibility of including in a court order form notice to the respondent of the right to appeal. [Generally, a respondent is notified of the right on the record in court].
-As a general matter: combine court forms for findings of fact, conclusions of law, and order and for separate orders. General practice is for findings of fact to be made on the record in open court. Consider order forms similar to Stutsman County form which include the rendition that the Court has "entered its findings of fact and conclusions of law on record" and include the order for treatment.
-Current preliminary hearing order form [C-8] should be further revised to reflect the statutory directive that the court must state and give written notice that the respondent has the right to a full treatment hearing if involuntary treatment extends beyond 14 days.
-Appropriate forms [Orders or Notice of Procedures and Rights, or both] should be revised to give notice to the respondent of federal limitations on firearms possession in light of2011 legislation [HB 1269, N.D.C.C. §62.1-02-01.2(1)].
-F-2 (Report of Examination) and F-2A (Report Assessing Availability and Appropriateness of Alternative Treatment), which duplicate information, should be combined. An example of the combined form was reviewed.
-Order portion of GN-4 [Application and Order for Waiver of Hearing] should be deleted as it is unnecessary. GN-4 should be further revised to include language regarding respondent waiver of the right to contest disclosure of information subject to 42 CFR limitations. State Hospital has developed forms for use in the event the respondent refuses to sign a release regarding 42 CFR information.
-Forms specific to the use of ITV should be included.
The Committee will continue review of the commitment forms at the next and subsequent meetings. Additional participants to aid in the review will be contacted.
Other Committee Business
Criminal Judgment Form. Committee members next discussed the current Odyssey criminal judgment forms, which is based on the earlier UCIS form, and a judgment form under review in Cass County [Attachment B (August 12, 2011)].
Judge Kleven observed that the current Odyssey form is hard to read and understand and is difficult to work with. She inquired of the status of the Cass County form. Chris Iverson said the Cass County form, which is actually a kind of report, is modeled after a Minnesota form as in a very preliminary testing stage. She said the next system upgrade in Odyssey is necessary before trying to implement the form. The upgrade, she said, is a few months away. She said the objective in considering the different form is to create a form that is simpler and easier to use and understand. She said one difficulty with the current form is that when dealing with multiple charges in a case, a separate judgment must be generated for each charge. She said the new form/report would reflect all of the charges in the case.J
udge Nelson said the new form is preferable to the current form. Committee members agreed the new form should be implemented following the necessary system upgrades.
Deferred Imposition of Sentence - Judgment Language. Committee members reviewed email comments submitted by Judge Karen Braaten regarding language "automatically" appearing in Orders Deferring Imposition of Sentence. The judgment language suggests probation begins upon release from incarceration or termination of parole, while the applicable statute indicates probation begins on the date of sentencing. Judge Braaten suggested clerks should be aware of the need to insert different language when the order is generated.J
udge Kleven said she would discuss the matter with clerk staff on SessionWorks to clarify the need to insert alternative language - that probation begins at sentencing - in orders deferring imposition of sentence.
Rule 54(b) - Entry of Judgment in Multiple Defendant Case. Committee members next discussed an issue initially reviewed by the Joint Procedure Committee and then suggested as a topic for discussion by the Committee. An attorney had outlined a situation in which clerks have entered a final judgment of dismissal in a case with multiple defendants when only one defendant has been dismissed. This appears contrary to Rule 54(b). See Attachment D (August 12, 2011).
Staff noted that when the Joint Procedure Committee discussed the issue, the minutes indicate that additional language for the Rule 54 explanatory note to address the issue was to be considered. He said it does not appear that any draft language has been reviewed.
Judge Kleven said she would revisit the issue with the Joint Procedure Committee. Committee members agreed the matter could also be addressed through clerk education programs.
Committee members then considered issues submitted by Kay Braget.
Certification Stamp - Placement. The Clerks manual [General procedures 1.13] currently directs clerks to simply stamp, date, and sign documents. Ms. Braget suggested that the procedure be modified to direct that the certification stamp be placed on the front or last page, as space permits. She said the change would accommodate scanning documents into Odyssey when the certification stamp is not on the back of the document. By consensus, Committee members agreed the procedure should be modified as suggested.
Juvenile Deprivation/Guardianship. Ms. Braget noted that juvenile deprivation files are opened in Odyssey under the DM (family) case category, but if a guardianship occurs because of the deprivation, a new guardianship file is opened in the PR (probate) case category. She said this process is followed as an Odyssey Business Practice and suggested it may be useful to include a similar procedure in the Clerks Manual.
Following discussion, it was agreed a general direction should be developed for the appropriate Manual location to indicate that if a juvenile deprivation becomes a guardianship, then the clerk should open a guardianship file and close the deprivation file.
Demand for Change of Judge - Triplicate Requirement. Ms. Braget drew attention to the current procedure, which reflects a statutory requirement, that counsel seeking a change of judge must submit the written demand in triplicate. She said the triplicate requirement is very cumbersome in the Odyssey file and serve process and serves no real purpose.
Committee members noted that the triplicate requirement is specifically provided for by statute, which complicates any effort to disregard the requirement. Committee members discussed the feasibility of referring the matter to the Joint Procedure Committee for purposes of considering whether the statutory requirement could or should be superseded by rule.
After discussion, it was moved by Judge Kleven, seconded by Kay Braget, and carried that the issue be referred to the Joint Procedure Committee to consider a rule to supersede the requirement that the demand be filed in triplicate and to direct that upon filing a single document the clerk must distribute copies as directed by the statute.
There being no further business, the meeting was adjourned at 1:30 p.m.
Jim Ganje, Staff