Committee on Trial Court Operations
Radisson Hotel, Bismarck
November 9, 2007
Members Present: Judge David Nelson, Chair, Jody Fixen, Chris Iverson, Judge Debbie Kleven, Deb Simenson
Members Absent: Kay Newell Braget, Louie Hentzen, Cindy Schmitz
Others Present: Bonnie Palecek, Shelly Carlson, NDCAWS, Amy Arenz, Advocate, AARC, Collin Rixen, Burleigh County Sheriff's Department, 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 (November 2, 2007)- Minutes of the September 124, 2007, meeting. The minutes were approved as distributed.
Domestic Violence Protection Order Forms - Review
Chair Nelson then drew attention to Attachment C (November 2, 2007) - protection order forms and comments regarding possible revisions. Committee members agreed to use the "Draft" protection order form prepared by Judge Kleven as the basis for reviewing the current order form. Staff distributed copies of the ctirrent protection order forms in word processor format and as printed from UCIS.
Judge Kleven explained that she had contacted several different entities for comments regarding current protection order forms and possible revisions. She said a compilation of the comments is included in Attachment C. With respect to her Draft form, she said the form generally contains those provisions necessary to comply with federal firearms laws. She noted that a cover sheet of information is currently provided to law enforcement and asked whether that cover sheet should be included with the form itself.
Bonnie Palecek said the separate cover sheet is completed by the petitioner and is generated through the advocate system. The cover sheet, she said, contains information helpful to law enforcement concerning the respondent and that information is not reflected in the order itself. She said the cover sheet is provided to law enforcement for their use and is not served nor does it enter the court's record.
Amy Arenz noted that the respondent identifiers contained on the first page of the current order were the result of a national effort to provide uniform information across states and to help ensure that protections orders received full faith and credit enforcement.
With respect to the informational cover sheet, Judge Kleven said if the process is working there appears no need to address it as part of revision of the forms. With respect to the respondent identifiers, which are not included in the Draft, she said they should be retained in light of the need for identifying information to assist enforcement in other jurisdictions.
Kari Goos noted that the box format reflected in the word processor version of the protection order form is very difficult to implement in UCIS. As a result, she said, the UCIS form simply sets out the information fields without using the box format.
There was general agreement to include the respondent identifiers reflected on the first page of the UCIS form in the Draft form.
In response to a question from Judge Nelson, Kari Goos said there is room in the UCIS form for up to 5 petitioners and 5 respondents to be identified.
Judge Nelson asked as a general matter whether items reflected on the UCIS form will be shown on the final order if the particular item is not included as part of the order by the court, Kari Goos said her earlier direction was to show all paragraphs of the order, with X's used to indicate what is included in the final order. She said some judges want to see all available options, which can then be used in a working draft. She said the working draft in some instances becomes the document that is served and the clerk then enters information into the system.
Judge Nelson asked if there could be a working draft that shows all the options as well as the final order once the judge has made final selections for the order. He said his preference is that if certain provisions/paragraphs are not selected by the judge for the final order, then they should not be reflected in the order. It is important, he said, that the order can be clearly understood and conveys clearly what is permitted and prohibited.
Kari Goos explained that there is an option to print a "working permanent order".
In response to a question from Bonnie Palecek concerning what constitutes a "working" document, Judge Kleven said the working order is one on which the judge makes notes for provisions to be included in the final order. She said the information is put into the system to create the final order, which is then returned to the judge for signing. Sherry Mills noted that that process is not followed in Burleigh County because judges do not want to sign orders twice and advocates dislike the delay associated with getting the revised order signed.
Judge Kleven observed that if an order is issued in Burleigh County with the judge's notes reflected in the order, and the respondent is arrested in Grand Forks, law enforcement in Grand Forks may not be aware of the notes relevant to the order. Sherry Mills said the clerks in Burleigh County enter all notes from the judge before the order is transmitted to BCI. Judge Kleven said the practice is likely not uniform across the state.
Amy Arenz said Morton County orders are handled the same as in Burleigh County. Sherry Mills said working up the orders in that manner saves time so that advocates are not asked to wait until the judge comes out of court to sign a revised order.
Judge Nelson said in his area order forms are usually completed by the clerk or advocates and then signed. He said the advocate makes a copy of the order and the order is then given to the respondent in court. He wondered if it was possible to have two kinds of working copies, with one being available for those judges who want to work with a draft. He said the worldng copy would go no further than the judge.
In response to a question from Judge Kleven, Kari Goos said the final order can be programmed to be similar to the criminal judgment so that those provisions not selected by the judge for the final order would not be shown in the order. She said access to a working copy in UCIS could be maintained so that it would be available for judges who wish to use it.
Committee members then turned to further review of the Draft final order form included in Attachment C.
Judge Kleven explained that the Draft begins with a section entitled "Findings of Fact", which would replace the opening paragraph ("To the Respondent") in the current order. She said the current form does not explicitly ad.dress findings and the Supreme Court as made clear that findings must be made by the court before the order is issued. As a general approach, she suggested, and Committee members agreed, that paragraphs should not be labeled a, b, c, etc., or numbered.
With respect to paragraph (a) in the Draft [petitioner present at the hearing], Judge Kleven asked whether an optional paragraph should be included to indicate that petitioner was not present. Amy Arenz noted there have been some situations in which the petitioner was in fact not present at the hearing. Itwas agreed that an optional paragraph should be included to reflect that petitioner was not present. Judge Kleven said that when there are options, the option not selected should not appear in the final order. Committee members agreed.
With respect to the provision in the current order by which it is indicated counsel was or was not present, Judge Kleven said when the UCIS form is generated a long blank line appears when counsel is reflected as "not present'', which makes the order unclear. Kari Goos explained that the blank line is a programming feature added in response to a request to leave a space so counsel's name can be written in if counsel appears later in the proceeding.
Judge Kleven said paragraph (b) of the Draft would enable selecting whether petitioner was or was not represented by an attorney and only the provision selected should then appear in the order without an unexplained blank line.
Judge Kleven explained that paragraph (e) in the Draft includes "intimate partner" to describe one of those protected by the order. The phrase, she said, is currently used in federal firearms laws. She said "intimate partner" is not defined in North Dakota law and consequently there is some uncertainty about how the phrase would be applied.
Judge Nelson wondered whether the reference could be deleted, i.e., not appear, if it did not apply in the order.
Judge Kleven said it may be possible to use language from North Dakota law - "fomily or household member" - in the order and if federal authorities sought to prosecute the respondent for a federal violation then federal prosecutors would likely have to determine if the family or household member was an intimate partner for purposes of federal prosecution.
With respect to alternative paragraph (e) in the Draft, which indicates the order "does not" protect an intimate partner, child, or ward, Judge Nelson wondered whether the paragraph could simply not be shown if the order does not protect one of the identified persons. He said it seems odd to have in an order a provision that it does not protect someone. Judge Kleven agreed implementation of the order form should enable simply not showing the paragraph if it does not apply. There was agreement that paragraph (e) would be reflected in a final order ifit applied, but otherwise would not be shown if it did not apply.
Judge Kleven said if it is necessary that the court actually make a finding that the protected person is a "family or household member'', then the provision would be necessary. She observed that the North Dakota definition of "family or household member" seems to encompass the federal definition•of "intimate partner".
Staff noted that for purposes of satisfying the federal Brady requirement, the current order contains a section in which the court makes special findings that the petitioner's relationship to the respondent is spouse, former spouse, parent of a child in common, or cohabits or has cohabited with the respondent.
Judge Kleven observed that the Brady advisory contained in the current order is no longer necessary. She said, however, that paragraph (g) in the Draft concerning whether the respondent is a credible threat is a required finding under the federal firearms laws [18USC 922(d)(8) and (g)(8)]. Judge Nelson said that if judges do not "check" paragraph (g), then the paragraph would not be included in the order, which would not then provide the finding required under federal law.
Shelly Carlson noted a recent Iowa Supreme Court decision Eissenburger v. Iowa District Court for Warren County, October 26, 2007), which concluded a trial court cannot authorize a respondent to possess firearms in violation of federal law.
Kari Goos cautioned that some changes to the order may affect how information is transmitted to BCI as certain categories of information are required for the order information to be transferred.Judge Kleven explained that paragraph ( i) of the Draft is the preface to the Order portion of the Draft. She said a specific provision for Conclusions of Law is not included in the Draft. Judge Nelson said a section for Conclusions of Law is probably unnecessary since Findings of Fact would be set out in the order, particularly paragraph (h), which would include the judge's narrative finding concerning acts that constitute domestic violence. Judge Kleven agreed.
With respect to paragraph (e) of the Draft, Judge Kleven asked whether it would be more useful to have a special finding of fact that identifies the relationship between the petitioner and the respondent, rather than using a general reference such as "family or household member" or "intimate partner". Kari Goos noted the programming complexities associated with a relationship finding if multiple petitioners and respondents are addressed in the order.
With respect to multiple petitioners, Bonnie Palecek observed that if children are also involved some jurisdictions require a separate petition for each child. She said the ability to reflect multiple petitioners in the same order may alleviate that burden. Amy Arenz said separate notarizations of petitions are sometimes required when children are involved. Judge Kleven asked why an order could not address all children in common without the need for separate petitions and notarizations. Judge Nelson observed that the fact that a particular person is not named in the order heading does not mean the person cannot be named in the body of the order. Amy Arenz said the status of children is sometimes addressed in the portion of the order excluding the respondent from certain areas.
With respect to paragraph (e) [finding regarding intimate partner] and paragraph (g) [finding regarding credible threat] of the Draft, there was tentative agreement that both paragraphs should be retained with paragraph (g) modified to track federal language concerning "intimate partner or child". Itwas also agreed that if either provision is not selected by thejudge for inclusion in the final order, then the provision would not be shown in the order.
It was agreed that paragraph ( i ) of the Draft, the preface paragraph to the Order portion, should be deleted as unnecessary.
Committee members then turned to a review of the Order portion of the Draft.
With respect to paragraph 1, which instructs the respondent not to commit acts of domestic violence and defines domestic violence, Judge Nelson questioned whether it was necessary to the order as the identified acts are prohibited by law.
Judge Kleven said the paragraph largely repeats language in the current order form and likely has been included because the temporary protection order statute provides that the order may restrain the respondent from "committing acts of domestic violence".
Shelly Carlson said it is generally helpful to spell out in detail exactly what the respondent cannot do, even if it identifies obvious things.
Judge Nelson said the order should be very clear that the respondent is to have no contact with the petitioner. He said itemizing particular prohibited acts enables the respondent to argue that this or that act was not committed. He said little is accomplished by prohibiting the respondent from committing acts that are already prohibited by law. However, he said, it is appropriate to identify particular acts that the respondent would otherwise be permitted to do, but is prohibited from doing by the order, such as going into the home.
Following discussion, it was tentatively agreed that paragraphs 1 and 2 of the Order portion of the Draft should be deleted. As alternative language, Judge Kleven suggested paragraph 3 be modified to track the language of NDCC §14-07.1-02(4)(a), with the additional change that the prohibitions against "any contact" be extended to the petitioner "and the following designated family and household members". Judge Nelson suggested that "directly or indirectly" be inserted to modify the various prohibited acts and that contact by email be included. Sherry Mills suggested text messaging should also be included. There was general agreement to modify paragraph 3 as suggested.
Judge Nelson asked whether the Order portion could be restructured with "To the Respondent" as the heading, and then each following paragraph introduced by "you are prohibited from ...". Kari Goos noted problems that may arise ifthere are multiple respondents.
Judge Nelson suggested, and it was agreed, that "Except as otherwise provided in this Order" precede paragraph 3 and the following paragraphs.
Judge Kleven suggested paragraph 4 be separated into two paragraphs and that communication by any electronic means, rather than a specific reference to email and text messaging, be included in the new 2nd paragraph.
With respect to paragraph 6, it was agreed that paragraph 3 of the current order, which identifies limitations on proximity to the petitioner's home, work place, day care, or other location, should be substituted for paragraph 6.
Sherry Mills suggested, and it was agreed, paragraph 9 in the Order portion of the Draft could be deleted as it would be addressed in the new paragraph 6.
Judge Kleven asked whether references in the Order portion to "petitioner" should be extended to include family and household members. After discussion, there was agreement to refer only to the petitioner in the Order portion except for the reference in new revised paragraph 3, which reflects the more expansive statutory language.
With respect to paragraph 8 concerning removal or exclusion from the residence, Judge Nelson noted proximity to the residence is addressed elsewhere. He asked whether paragraph 8 should be limited to addressing only removal from the residence. Judge Kleven suggested the paragraph could be deleted since the respondent will likely already have been removed from the residence under the temporary order. It was agreed paragraph 8 could be deleted from the Order portion of the Draft.
Judge Kleven suggested, and it was agreed, that paragraph 10 should be modified to read "The Petitioner shall have the possession and use of the following motor vehicles and other property: "
Judge Nelson suggested, and it was agreed, that paragraph 11 should be modified to read: "The Court orders the following additional relief: ", thereby deleting the detailed listing of the kinds of relief.
Chris Iverson noted that the current order contains a provision for counseling and wondered whether that provision should be retained. Judge Kleven said the counseling requirement could be included as an option for thejudge to select if necessary, with the provision not showing in the order if it is not selected. She noted the difficulty associated with ordering counseling is that it is not tracked and there is, as a result, difficulty in ensuring the respondent actually obtains counseling. Committee members agreed the counseling requirement should be included as an optional provision.
With respect to paragraph 12 of the Order portion of the Draft concerning law enforcement assisting the petitioner in recovering personal property, Collin Rixen said it is unclear how the provision would apply since that has generally already been done under the temporary order. Judge Nelson said he has never included the provision in his orders and area law enforcement have always assisted the petitioner in obtaining property from the residence. Collin Rixen said the provision could be limited to simply supervising the removal of personal property by the petitioner or respondent. Judge Nelson said the paragraph could be modified to provide that law enforcement may supervise the parties in the removal of personal belongings from the restricted residence. Collin Rixen suggested adding "as per order of the court". There was tentative agreement that paragraph 12 should be modified as indicated.
With respect to paragraph 13regarding surrender or possession of firearms, deadly weapons, or ammunition, Collin Rixen said the order should be very specific because law enforcement is required under paragraph 15 to provide written verification that the respondent has complied with the order. He said law enforcement will not know if the respondent has complied unless the court very clearly identifies what must be surrendered. With regard to paragraph 14 concerning the timeline for surrendering the designated items, he said the specific timeframe is questionable. Judge Kleven agreed and said the language was included simply for discussion. She said the timing for surrender of items would be determined by each law enforcement agency in conjunction with the court.
Judge Nelson suggested, and it was agreed, that paragraph 14 be modified to read: "The Respondent will surrender the items listed above. Respondent must contact the following law enforcement agency to arrange the details of how to surrender the items. Contact must be made by "(an outside date). Collin Rixen noted that in most situations firearms will already have been collected under the temporary order. He noted also that the temporary order does not address ammunition.
In response to an observation by Judge Kleven, there was general agreement that provisions in the Order portion pertaining to law enforcement should be placed at the end of the order.
With respect to paragraph 13, Judge Kleven said the reference to "deadly weapon" should be changed to "dangerous weapon", which would track state law. She said there is also a need to reflect the federal prohibition against possessing ammunition. She noted that the federal prohibitions are premised on a finding that the respondent is a credible threat, while state law requiring the surrender of firearms requires a probable cause determination by the court that the respondent is likely to use, display, or threaten to use the firearm in further acts of violence. It is uncertain, she said, how the two standards will be applied. She suggested possibly including a specific firearms section that addresses both the state and federal requirements.
With respect to paragraph 18 of the Order portion of the Draft, Kari Goos noted the current order simply says "Visitation shall be exercised as follows:" followed by an extended comment area in which thejudge can indicate specific requirements. She asked whether that provision ispreferable to the several options set out in paragraph 18. There was general agreement to retain the current visitation provision.
Judge Kleven suggested paragraph 19 regarding child support should be modified to delete "for the following minor child[ren]". Additionally, she said it may not be necessary to refer to the Child Support Guidelines. After discussion, it was agreed the child support provision in the current order should be retained.
With respect to paragraphs 20 and 21 regarding spousal support, it was agreed paragraph 20 should be deleted and paragraph 21 should be modified to read "Respondent shall pay support to the Petitioner in the amount of$ per month beginning . The amount is payable as follows: ." Judge Nelson suggested, and it was agreed, that paragraph 22 regarding attorney fees and costs should be modified in a similar manner. There was general agreement that paragraphs 21 and 22 would be options to be selected by the judge as necessary and if not selected would not appear in the final order.
Judge Kleven suggested, and it was agreed, that all provisions concerning money matters should be collected in one place in the order.
Kari Goos suggested, and it was agreed, that the phrase "This Order Expires On: " could be moved to the first page of the order.
Chair Nelson said the suggested revisions would be assembled ina draft form for review at the next meeting.
Criminal Judgment Form
With respect to future revision work concerning the criminal judgment form, Judge Kleven noted the requirement under NDCC §31-13-03 that an individual convicted of a felony must provide a DNA sample. She said the judgment form should be revised to include this requirement.
There being no further business, the meeting was adjourned at 2:30 p.m.
Jim Ganje, Staff