Committee on Trial Court Operations
Radisson Hotel, Bismarck
January 24, 2008
Members Present: Judge David Nelson, Chair Jody Fixen, Louie Hentzen, Chris Iverson, Judge Debbie Kleven, Cindy Schmitz, Deb SimensonMembers Absent: Kay Newell Braget
Others Present: Janelle Moos, Shelly Carlson, NDCAWS, Amy Arenz, Advocate, AARC, Sherry Mills, Burleigh County Deputy Clerk, Kari Goos, Technology Department, ND Supreme Court
Chair Nelson called the meeting to order at 10:00 a.m. and drew attention to Attachment B (January 18, 2008) - Minutes of the November 9, 2007, meeting. The minutes were approved as distributed.
Domestic Violence Protection Order Forms - Review of Revisions
Chair Nelson drew attention to Attachment C (January 18, 2008) - the permanent protection order form with revisions based on the November 9 meeting discussion. Committee members then reviewed the form and discussed additional modifications.
Deb Simenson wondered why the permanent order, on page 1, identifies the clerk of court by county and the clerk's telephone number. She noted the order caption already indicates the county in which the action is taken. She suggested the specific provisions regarding the clerk and telephone number could be deleted as unnecessary. Committee members agreed.
With respect to the "Respondent Identifiers" on page 1, Judge Nelson asked why some identifiers are listed and not others. Sherry Mills said the Passport to Safety project recommended the particular identifiers as most useful for cross-jurisdictional enforcement pµrposes.
Staff drew attention to boxes ( [ ] ) inserted at various places to indicate the optional nature of a particular provision o fthe order. If the box is checked by a judge or court personnel in preparation of the order, then the checked provision will appear in the order while provisions not checked will not appear.
Judge Nelson suggested, and Committee members agreed, that the provision related to the respondent on page 2, lines 17-20, should also be preceded by boxes to indicate that they are options available for inclusion in the order.
Staff drew attention to the new provision on page 2, line 21, concerning the optional provision for designation of the protected person as an intimate partner of the respondent or child of the intimate partner. Judge Kleven said intimate partner status is a required finding under federal law, but North Dakota law does not have an exact counterpart. She noted that the North Dakota definition of "family or household member" likely encompasses those identified as an "intimate partner" under federal law but it is uncertain whether the state order must explicitly use the phrase "intimate partner". Noting that it would be an optional provision in the order, Committee members agreed the provision should be retained.
Staff drew attention t )the finding that the respondent represents a "credible threat to the physical safety of an intimate partner" of the respondent - page 3, lines 1-2. He noted that federal law requires either a finding of credible threat or that the order prohibit the respondent from using, attempting to use, or threatening to use physical force against the petitioner. Since the provisions are in the alternative, he said, it may be possible to simply incorporate the prohibition against use of force in the order and satisfy federal requirements regarding firearms in that manner.
Judge Nelson suggested moving the provision concerning the prohibition against use of force (page 7, lines 6-7) to page 3 immediately following the "To The Respondent" heading. Committee members agreed. It was also agreed that the credible threat provision (p.3, lines 1-2) could be deleted.
Staff drew attention to the provisions on page 3, lines 15-20, which would prohibit the respondent from engaging in certain kinds of conduct, and asked whether option boxes should be included for these provisions. Judge Nelson said the provisions are common to most orders and should probably be retained as constant provisions in the order. Committee members agreed.
Judge Nelson observed that it may be useful to provide an optional line for the prohibitions against calling, writing, etc, (p.3, line 18) and communicating by electronic or other means (p.3, lines 19-20) in the event the court may conclude the respondent could contact the petitioner in limited circumstances. Committee members agreed both provisions should be modified to include an optional "except as follows" segment.
Judge Nelson noted that the heading "B. ORDER" on page 3, line 8, is an awkward fit with the immediately following heading "TO THE RESPONDENT". He said the order heading is likely unnecessary since the segment following the respondent heading contains the court's specific orders to the respondent. Committee members agreed the order heading should be deleted.
With respect to the proximity provision on page 4, lines 2-6, Judge Kleven noted that orders printed in her court always provide "50 feet" as the distance and apparently cannot be changed to allow a different distance to be shown. Sherry Mills said that when permanent orders are prepared in UCIS in Burleigh County any distance can be inserted in the order. Judge Kleven said she would check with local process to determine why the problem may be occurring.
With respect to the proximity provision, Judge Kleven suggested, and Committee members agreed, the provision should be revised to read: "You are prohibited from being within (feet) (yards) of: ". Judge Nelson suggested, and Committee members agreed, that" Other" should be deleted from the generic optional line and that an additional optional line should be added to provide more space for the court to identify other locations subject to the proximity provision.
With respect to prohibition against "following or stalking the Petitioner" (page 4, line 9), Judge Nelson wondered whether the provision is necessary since the order already has provisions prohibiting the respondent from having any contact with the petitioner and prohibiting coming within a certain distance of the petitioner. Judge Kleven said the following or stalking provision is often a useful deterrent for those respondents who exploit the proximity limitation, e.g., "as long as I stay 50 feet and 1 inch away, I can follow her anywhere".
Judge Nelson suggested, and Committee members agreed, option boxes should be inserted for the provisions concerning possession and use of motor vehicles and property and the court's ordering of additional relief (page 4, lines 12-15).
With respect to the temporary child custody provision (page 3, lines 16-17), Committee members agreed an additional line should be added and option boxes for petitioner and respondent should be added.
Chris Iverson drew attention to the provision concerning payment of child support (page 4, lines 22-24) and wondered whether option boxes for petitioner and respondent should be included in the event respondent is awarded temporary custody. Janelle Moos asked whether there are any circumstances in which a respondent might be awarded custody of a child. Judge Nelson said the most likely scenario would be one in which mutual protection orders are involved. Committee members agreed the option boxes should be included.
With respect to the provision for ordering the respondent to pay "support" (page 5, lines 1-2), Judge Nelson noted that there are circumstances in which a court may order the respondent to pay spousal support and there are circumstances in which the support would be paid through the State Disbursement Unit, much like child support. Committee members agreed an optional provision should be included which would direct support payments to be paid to SDU.
Committee members then reviewed provisions in the revised order concerning the surrender of firearms. Staff drew attention to page 5, lines 5-14, which reflect the state law requirement that the court find probable cause that the respondent will use a firearm in a further act of violence as a basis for ordering the surrender of firearms. He said the previous action to remove the "credible threat" provision and include the prohibition against the use of force may make the apparent conflict between federal law and state law less of an issue. Judge Kleven said the larger issue remains whether federal law requires that the court order the respondent to surrender firearms regardless of the state law probable cause requirement. She said the Iowa Supreme Court opinion, included as Attachment E (January 18, 2008), indicates that the federal law prevails. Staff noted that Iowa appears not to have a statute similar to North Dakota's with respect to the probable cause determination.
Judge Nelson suggested retaining as optional provisions the current order segments related to the surrender of firearms (page 5, lines 5-14). He said a court can then determine whether surrender of firearms is appropriate and if the option is selected it would appear in the order. He said the revised order contains language (page 8, lines 5-7) instructing the respondent that it is unlawful under federal law to possess or purchase a firearm. Committee members agreed the optional provisions should be retained. It was also agreed the provisions concerning directives to law enforcement (page 5, lines 19-23, and page 6, lines 1-12) should be reflected as options for the court to select if appropriate.
With respect to the directives to law enforcement concerning the surrender of firearms, staff said the remaining issue is whether those provisions would be selected and included in the order based on the state law probable cause requirement or the federal law requirement.
Shelly Carlson asked how firearms would be surrendered and to whom if a judge does not make the probable cause finding under state law but an advocate informs a respondent that possession of a firearm is prohibited under federal law.
Judge Nelson said if the order directs the respondent to surrender a firearm or notifies the respondent that possession of a firearm is prohibited by federal law, then the respondent is responsible for surrendering the firearm. He said it may be helpful to move the notification about the federal law restriction (page 8, lines 5-7) to immediately follow the provision prohibiting the use of force, which was relocated to page 3. In that manner, he said, it would be clear to the respondent that federal law prohibits possession and purchase of a firearm. Committee members agreed the notification should be relocated as described.
Committee members agreed the admission of service provision on page 9 should be retained, but it was unnecessary to retain the provisions concerning sheriffs service or service by mail.
Staff then distributed copies of the current petition form and comments reviewed at the last meeting concerning possible revisions.
Committee members initially agreed the following revisions should be made to the petition form.
Paragraph 3 regarding identification of children living with the petitioner - change to an optional provision; replace "Age" with "DOB"; and delete the numbers • preceding the blank lines.
Paragraph 11 regarding prohibited contacts - include "any electronic means". Paragraph 13 regarding exclusion from designated places - delete.
Paragraph 14 regarding custody- change to an optional provision. Paragraph 15 regarding visitation rights - change to an optional provision.
With respect to paragraph 21 concerning the narrative recitation of reasons for seeking a protection order, Judge Nelson said the system currently seems to limit the length of the narrative. He wondered whether the narrative segment could be deleted and replaced by a reference to an attached exhibit that would set out the incidents underlying the petition. Shelly Carlson noted that law enforcement does not have electronic access to the petition but does receive a paper copy. Janelle Moos said she could contact advocates concerning common practices with respect to use of the narrative portion of the petition.
With respect to the basis for ordering surrender of firearms, Judge Kleven asked whether it would be beneficial to include an optional segment in the petition, following the narrative, in which the petitioner could describe whether firearms or a dangerous weapon were used or have been used in the recent past. She said the issue would then be before the court to consider as appropriate. Committee members agreed an optional provision should be included as described.
Judge Nelson suggested an optional provision should be included on the last page following the date line by which the name, signature, and bar identification number of an attorney, if one is involved, can be included. Committee members agreed the optional provision should be included.
Committee members then turned to a review of the temporaryprotection order (orm, copies of which were distributed by staff.
Committee members agreed that the temporary order form should be changed to reflect changes to the permanent order with respect to provisions common to both forms.
Judge Nelson suggested, and Committee members agreed, the service provisions should be deleted as temporary orders are served by the sheriff.
Judge Nelson said the opening paragraph of the order following "To The Respondent" should be modified to more accurately reflect the process. Judge Kleven suggested a sentence should be added indicating the court has found that the petition alleges actual or imminent domestic violence, which would more closely follow the statute.
Following discussion, it was agreed the opening paragraph should be modified in the following manner: 1)revise the first sentence to reflect the petitioner has filed a petition, rather than requested an order, 2) include a sentence indicating the court has found the petition alleges actual or imminent domestic violence, 3) delete the sentence directing the respondent to stop domestic violence, and 4) add a concluding sentence that provides a transition to the following restrictions or other order provisions.
Judge Nelson suggested the paragraph concerning the notice of hearing should be set out in bold, larger print so that it is clearly visible. He also suggested it would be preferable to relocate the notice provision to follow the order's prohibitions. Judge Kleven agreed the order of provisions should be the court's finding in response to the petition, the restrictions and other directives, and then the hearing notice. She said the hearing notice should also indicate the respondent can appear at the hearing to explain why the terms of the temporary order should be changed, as well as explain why a permanent order should not be granted.
Following discussion, it was agreed the hearing notice should be revised and relocated as described.
There being no further business, the meeting was adjourned at 1:50 p.m.
Jim Ganje, Staff