Committee on Trial Court Operations
Doublewood Inn, Bismarck
June 19, 2009
Members Present: Judge David Nelson, Chair, Kay Newell Braget, Louie Hentzen, Chris Iverson, Judge Debbie Kleven, Deb Simenson, Cindy SchmitzMembers Absent: Jody Fixen
Chair Nelson called the meeting to order at 10:00 a.m. and called attention to the minutes of the April 17, 2009, meeting. With respect to the Committee's April 17 discussion of procedures related to juvenile cases, Deb Simenson noted the reference on page 3 of the minutes that staff in her office do not independently close out juvenile cases. She said her staff does close out cases if there is a finding and an order. She said cases are not closed out if there is no order or if clerk staff are unaware of a change in a child's status, such as in situations in which there is a shelter-care hearing, the child is released, and there is no order. There were no further additions or corrections to the minutes.
Certified Letters in Probate Actions
Committee members reviewed Attachment B (June 15, 2009) - draft procedures prepared by Kay Braget regarding clerk issuance of certified letters testamentary or administration. The draft procedure was prepared in response to discussion at the April 17meeting about when and how clerks may issue certified copies of letters that were in full force and effect on an earlier date.
Kay Braget noted that the sample certification seal included in the procedure is similar to one used in her office and is based on a seal used by Jody Fixen. The seal simply certifies that the copy is a full, true, and correct copy of the letters on file in the clerk's office and that on a specified earlier date the letters were in full force and effect. Deb Simenson said a similar seal is used in her office.
Committee members reviewed the three paragraphs contained in the draft procedure: (1) a general introduction indicating that clerks may be requested to provide certified copies of Letters noting that the Letters were in full force and effect on a particular date, (2) directing the clerk to review the file and verify that the PR's appointment had not been terminated before the date noted in the certification, and (3) making the certified copy using the sample seal and charging the appropriate fee. There were no suggested changes to the draft procedure or sample seal.
It was moved by Judge Kleven, seconded by Cindy Schmitz, and carried that the draft procedure be approved and recommended to the Administrative Council for inclusion in the Clerks Manual.
Juvenile Records Procedures - Manual Revisions
Committee members then reviewed Attachment C (June 15, 2009) - a draft rendition of revisions to Section 9.3 (Juvenile Court Records) of the Clerks Manual based on revisions submitted by Chris Iverson and discussion at the April 17 meeting. [All following line and page references are to Attachment C]. Staff said the revision leaves unchanged paragraph D regarding case closure as the April 17 discussion did not seem to reflect a general conclusion about closing issues. He noted the discussion suggested the possibility of modifying the first part of paragraph D (page 2, lines 9- 10) to provide that a case is closed when certain identified actions had occurred: no petition filed within 30 days, the case is adjudicated and there is a order of disposition or other closing order, or there was a temporary custody order that had not been extended.
Chris Iverson mentioned the possibility of requiring a temporary custodian to file an affidavit detailing that the child has been or is being returned to the home and a petition is not being filed. Staff noted the April 17 discussion (p. 4 of the minutes) regarding whether to include such a requirement in the temporary custody order.
Committee members discussed situations in which a petition is.not filed within 30 days and how cases are then handled. Deb Simenson emphasized that clerks most often do not know what has occurred with the case and therefore it is unclear how the case should be handled. Kay Braget noted that her office closes the case if a petition is not filed within 30 days.
In response to a question from. staff regarding whether it is common practice to close the case if a petition is not filed, Chris Iverson said one approach is that juvenile court staff will review docket currency reports and notify the clerk if there are cases still reflected as open that should be closed. She said there is nothing "official" that marks the transition from. open to closed.
Louie Hentzen noted that there has been discussion among juvenile court staff about encouraging the use of some kind of formal notification to the clerk's office about closing cases.
Kay Braget observed that temporary orders usually contain a provision that the order is valid only for 30 days. She wondered whether it is necessary to generate another piece of paper when the order itself directs when it ceases.
Judge Kleven suggested the possibility of closing the case in a manner similar to the administrative closing of probate cases set out in Trial Court Administrative Policy 505. Kay Braget said a tickler could be set for 30 days out and if a petition has not been filed within that time, then the case can be closed out. Judge Kleven asked whether language regarding setting a 30-day tickler should be added to page 2, lines 7-8, which addresses entry of the temporary custody order in the case management system.
Chris Iverson noted that the date the child is placed in temporary custody is entered in the system and asked whether an "out of custody" date would be entered when the case is closed if a petition is not filed. She said the time period the child was in temporary custody is information that is likely needed.
Louie Hentzen said there should be some kind of paper trail that indicates when the child is placed back in the home by social services following a temporary custody order. He said there sometimes is no notification that the child has been returned to the home and it should be the responsibility of social services to notify the juvenile court, which can then notify the clerk's office. Judge Kleven asked whether it is a court function to make sure the child is not in custody beyond the terms of the temporary order.
In response to a question from Deb Simenson about whether the juvenile case management system tracks the dates the child is in custody, Louie Hentzen said the system should track the information but there are problems with data entry for which corrective efforts are underway. Additionally, he said social services is moving to a new database, one consequence of which is that for deprivation cases and terminations of parental rights three different databases will require relevant data to be entered. With respect to the direction on page 2, lines 11-12, that clerks enter the date the child is released from temporary custody, he observed that only the social services database has that information. Committee members questioned whether the directive is necessary if the information is not available to the clerk.
Following further discussion, Committee members agreed lines 7-8 and 11-12 on page 2 regarding entering the date of the temporary order and the date of release from temporary custody should be deleted from the draft procedure.
In response to a question from Chair Nelson, there was agreement that the remaining portion of paragraph D, which addresses when the case is closed, should be modified to further provide that the clerk will administratively close the case if a petition has not been filed before the temporary custody order expires.
Judge Nelson noted situations in which more than one child in a family is involved in a case. He said his preference is that one file should be opened for each child. Louie Hentzen said the national recommendation is that one child be handled in one case.
Kay Braget said the practice in her area, the Northeast judicial district, is that if one initiating document involves more than one child, a separate file is opened for each file. She said the draft procedure contemplates only one file regardless of the number of children involved. Chris Iverson agreed the procedure is based on the opening of only one file with the goal of ensuring that cases are counted in the same way. Louie Hentzen said the court administrative staff had concluded that the one file approach would be preferable for consistent case management. He said there is, however, disagreement and there are differing practices.
In response to a question from staff, Kay Braget said the language on page 2, lines 5-6, regarding each child listed on the initiating document being listed as an individual party and the language on page 1,lines 15-16,regarding one file number per initiating document implies that there will be only one file. Staff asked whether the one file approach should be set out explicitly in the procedure so that it is clear what is intended.
Chris Iverson explained that there was awareness that cases in these situations were not being handled similarly. She said the court administrative staff discussed the issue at length and concluded the one file approach is preferable, particularly with the advent of the new case management system, which is "person-based" and which should alleviate some of the concern about having multiple children of different ages in the same case file. She said it seems that opening a new file for each child required unnecessary extra copying and handling of multiple files when there is only one incident involving the family at issue.
Judge Nelson asked whether the Manual could reflect procedures for both ways in which a clerk may receive a petition: if a petition is filed for each child then a separate file is opened for each child and if a single petition names more than one child, then only one file is opened. He said a new rule could perhaps then be pursued which would direct which method is to be followed.
Kay Braget reiterated that if a single petition names more than one child the approach in the Northeast judicial district is to open a separate case for each child. It is not a matter of a separate petition for each child being filed at the outset. Louie Hentzen said a similar practice has subsequently been implemented in the Northeast Central judicial district, while in the remainder of the state the practice is to open one file per family.
Staff noted that the draft language on page 1, line 15, provides that only one file number "should" be used, which suggests, rather than requires, that one number and one file be used.
After further discussion, Committee members generally agreed that if one initiating document naming multiple children is filed, then a one file practice is preferable to opening several files and copying all relevant documents into all the files. It was noted that if a separate "original" petition, for example, is filed for each child, then a separate case file for each child would have to be opened.
Staff will revise the draft procedure based on the discussion and the revised procedure will be reviewed at the next meeting.
Administrative Rule 41 - Rule of Court 3.4 - Proposed Amendments
Committee members discussed Attachment D (June 15, 2009) - amendments to AR 41 and Rule of Court 3.4 recently proposed by the Joint Procedure Committee and a memorandum describing the amendments. There was general discussion of the impact on clerks' offices of current rule provisions governing redaction and confidential personal information. Staff said it is uncertain whether the Supreme Court will adopt the proposed amendments on an emergency basis subject to comment or will post the amendments for comment before adoption. Committee members stressed the importance for clerks of reviewing the proposed amendments and submitting comments when they are requested.
Judge Kleven asked whether a case transferred to a new county under Rule 20 of the Rules of Criminal Procedure must be opened as a new case in the receiving county. She noted a recent situation in which a case was transferred from Grand Forks County to Cass County. She said sentence was imposed in Cass County but the case remained on her docket currency report.
It was noted that Trial Court Administrative Policy 505, Section 6, which applies to Rule 20 transfers, provides that the clerk in the transferring county must close the case upon transfer and the clerk in the receiving county must open a new case in the same manner as the case was received.
Staff distributed proposed revisions to the Appeals Section of the Manual developed by Penny Miller and Jannelle Combs. It was noted that the revisions had been previously reviewed with clerks by Ms. Miller.
There being no further business, the meeting was adjourned at 12:30 p.m.
Jim Ganje, Staff