Committee on Trial Court Operations
Radisson Hotel, Bismarck
September 14, 2007
Members Present: Judge David Nelson, Chair, Kay Newell Braget, Jody Fixen, Louie Hentzen (Joined the meeting at 11:00 a.m.), Chris Iverson, Judge Debbie Kleven, Cindy Schmitz, Deb SimensonMembers Absent: None
Chair Nelson called the meeting to order at 10:00 a.m. and welcomed recently appointed Committee members Jody Fixen, Williams County Clerk of District Court; Chris Iverson, Unit 2 Trial Court Manager; and Cindy Schmitz, Richland County Clerk of District Court.
Clerk Manual Revisions
Chair Nelson then drew attention to Attachment B (September 5, 2007) - suggested revisions to the Clerk of Court Manual submitted by Kay Braget. Ms. Braget also distributed an additional set of suggested revisions, which incorporated the Attachment B revisions. Committee members reviewed each suggested revision in turn.
General Procedures Section Revisions
Section 1.7 (Procedures for Placing Case Papers in the File Folder). Committee members agreed Section 1.7E should be modified to include a reference to indicating the location of case papers or exhibits "on the register of actions", in addition to being reflected on the folder and in UCIS Case Notes. The notation on the register of actions would provide additional useful direction concerning the location of papers or exhibits.
Section 1.20 (Jury Trial Instructions. Oaths). Committee members agreed Section 1.20B(b) should be modified to reflect that mileage for jurors will be paid at the applicable state rate (without reference to a specific amount) and that a reference to the applicable policy and statute should be included.
Section 1.21 (Juror Records. Committee members agreed Section 1.2lB should be modified to delete "Manually or electronically", leaving the provision to read simply "Process juror payments". Kay Braget noted that all clerks are on the automated jury management system and the reference to how to process payments is unnecessary.
Civil Procedures Section Revisions
Section 2.2 (Procedure). Committee members agreed Section 2.2J ("Affix UCIS label") should be deleted as it is duplicative of Section 2.2B.
Section 2.5 (Closing Procedures for Old or Inactive Cases). Kay Braget suggested that Section 2.5(b) with respect to the Notice to Dismiss be revised to include "Set a tickler to review file in 30 days or date set by the judge in the Notice and Order of Dismissal form". She said the current procedure does not follow the UCIS process, which is triggered by Event Code 893 and printing of the dismissal form. Deb Simenson noted that the form is not used in Unit 3. Judge Nelson said he uses Rule 40(e) notices, which are created in the judges' offices.
Judge Kleven and Deb Simenson noted that in their respective courts the judges sign off on the dismissal notices. Judge Kleven said she prefers that a judge sign off on the dismissal after the 30 day time period has passed. She said there are often times when attorneys make requests to allow the case to continue for an additional time period. Kay Braget sa,id if the conclusion is that the judge should sign off on the dismissal, then her suggested revisions following 2.5(b) would be unnecessary.
Judge Nelson suggested adding a paragraph providing that if a request is made to keep the case open, the request will be submitted to the judge for consideration of a possible Rule 16 conference.
Following further discussion, Committee members agreed Section 2.5 should be revised as follows: 1)the reference in 2.5(a) to "Event Code 819" should be changed to "Event Code 893"; 2) 2.5(b) should be modified to include the tickler-related language suggested by Kay Braget; 3) a new paragraph (d) should be included reflecting the language suggested by Judge Nelson; and 4) no changes should be made to current paragraphs (d) and (e), which will be re-designated as (e) and (f). Kay Braget will contact Kari Goos about any questions concerning the Event Code 893 form.
Section 2.11 (Transcript of Judgment Docket (Outgoing Judgments). Kay Braget suggested paragraph B, regarding preparation of the transcript, be revised to include a reminder to mail the transcript to the other county with an affidavit of identification if required. Committee members agreed the paragraph should be revised as suggested and also revised to include a note describing when an affidavit of identification is not required.
Assignment of Judgments. Kay Braget drew attention to NDCC §28-20-20 governing assignment of judgments. She asked whether a new section should be included in the Manual that addresses entry and transcription of assigned judgments and other pertinent matters. Deb Simenson said she does not encounter assigned judgments very often but direction may be helpful for new clerks.
Following further discussion, Kay Braget agreed to prepare a draft procedure concerning assignment of judgments.
Small Claims Section Revisions
Section 4.7 (Removal from Small Claims fo District Court). Committee members agreed a new paragraph B should be added, as suggested, directing the clerk to open a civil file and transfer documents from the small claims file. Committee members also agreed a new paragraph should be added concerning receiving the filing fee and issuing a receipt.
Guardianship/Conservatorship Section Revisions
Kay Braget noted that the section directs the clerk to use a notice to order report form and an order approving the report form if the court directs filing of an annual report. She said the forms, are not included in the section and asked whether they should be included as an Appendix. She noted that the forms are not available in UCIS. She distributed a Notice to File Report and Account form that has been used in the Northeast judicial district. Committee members agreed the forms noted in the Manual Section should be included as an Appendix to the Section.
Confidential Records Section Revisions
Kay Braget drew attention to Section 9.11 (Procedures for Confidential Case Files), which identifies protection orders and disorderly conduct restraining orders involving domestic violence as confidential records. She asked whether more direction should be provided in this Section about when a restraining order case can be considered as involving domestic violence. She distributed a memorandum prepared by Judge Karen Braaten for the Northeast Central judicial district which discusses how to determine if a restraining order petition describes what may be domestic violence.
Judge Nelson explained that in Williams County petitions for protection orders and restraining orders are always submitted first to a judge for review. Kay Braget said a similar approach is followed in her area, but submitting the petitions to a judge first may be problematic if a traveling judge is involved. The question becomes important, she said, because if the petition involves domestic violence, then the case file is confidential and no filing fee is charged. Additionally, she said the issue is how the clerk manages the file pending a determination of what is involved.
Judge Nelson suggested one method of addressing the issue may be to provide space on the petition where it could be indicated that domestic violence is involved.
Following further discussion, Committee members agreed the issue should be included in future forms revision discussions.
Administrative Traffic Section Revisions
Section 13.2 (Case Initiation). Kay Braget suggested the section should be revised to include a reference to specific UCIS notice forms when juveniles are involved. Committee members agreed the section should be revised to include "(Juvenile Notice - UCIS Screen Option #7and Screen Option #1)".
Section 13.3 (Receipt of Bond Forfeiture). Committee members agreed paragraph C regarding non-electronic citations should be deleted as all citations are handled electronically.
Section 13.5 (Procedure for Unpaid Traffic Citations). •Withrespect to paragraph A(3), Kay Braget noted that UCIS generates a suspension request and, as a result, it is unnecessary to refer to mailing the citation copy to DOT. Committee members agreed the first sentence of paragraph A(3) should be revised to read "If not paid, generate suspension notice from UCIS." With respect to paragraph A(4), which directs mailing of a notice to DOT when bond is received, Kay Braget explained similarly that the notice is generated by UCIS. Committee members agreed paragraph A(4) should be revised to read "When bond is received, UCIS will generate a notice to DOT".
Election Procedure Section Revisions
Kay Braget noted that 2007 legislative changes transferred responsibility for election ballots from clerks of court to county recorders. Committee members agreed the election procedure section could be deleted from the Manual.
Appeals Section Revisions
Kay Braget suggested it may be helpful to include in the Appeals section references to UCIS Event #420, which generates the notice of filing the appeal, and UCIS Event #440, which prints the certificate of record. Committee members agreed a reference to UCIS Event #420 should be included in Section 10.2B and a reference to UCIS Event #440 should be included in Section 10.3A.
Child Support Procedure Section Revisions
Kay Braget suggested the October 12, 2005, email from the State Court Administrator's office concerning transcribing child support judgments containing personal information should be included in Section 7.1A. Committee members agreed.
Committee members also agreed that with respect to the application of Rule 3.1, Rules of Court, regarding personal information, cross references to Section 9.13 (Confidential Records), which addresses the matter, should be included in the General and Civil Sections.
Bankruptcy Discharge Procedure s
Chair Nelson next drew attention to Attachment C (September 5, 2007) - 2007 legislation concerning bankruptcy discharges and Manual Civil Section 2.15 regarding procedures for handling discharges.
Staff noted that the legislation considerably revises statutes concerning the discharge of judgments after bankruptcy and the question is to what degree Section 2.15 should be revised to reflect the statutory changes. He said the previous statute hinged on the clerk's responsibility to expunge a judgment that has been discharged in bankruptcy. The 2007 amendments remove the expungement requirement and refers instead to "terminating" judgment liens and removing a judgment lien as a cloud on the homestead. He said it is less than clear what a clerk must now do when a copy of a discharge is filed With the clerk.
Committee members agreed the matter should be reviewed further and additional background information assembled.
Forms Development and Revision
Chair Nelson then drew attention to Attachment D (September 5, 2007) - a letter from Sally Holewa indicating the Administrative Council's conclusion that the Committee should formally take on the task of creating and revising court forms, including the criminal judgment form, protection order forms, and mental health forms. The letter explains that Judge Kleven, Judge Fontaine, and Referee Portscheller had prepared draft revisions to the protection order forms to reflect new federal requirements concerning firearms.
Chair Nelson said the initial decisions for the Committee are which forms to review and whether to invite others to participate in the review and revision process.
Judge Kleven then distributed a series of draft forms including a draft protection order form, a draft firearms notice, draft forms concerning appearance bonds, and draft forms regarding the surrender and return of firearms. She said the firearms notice should likely be incorporated in or added to the statement of rights given to defendants. She said the draft protection order form is designed to reflect recent changes to federal law requirements. Additionally, she suggested that the form, when implemented in UCIS, should be constructed so that only pertinent parts of the form, for example, only specific findings made by the court, will print when the order is finalized. She said the current form is unwieldy and prints many things that may not be pertinent to a particular order.
Chair Nelson said the Committee would review protection order forms at the November meeting. The remaining forms will be reviewed at subsequent meetings. He asked that Committee members consider forms they would like to see developed or revised and note them for the November meeting.
Committee members agreed the Committee should meet quarterly in 2008. There being no further business, the meeting was adjourned at 1:00 p.m.
Jim Ganje, Staff