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Updated second response to questions from SBAND members Tuesday, April 28, 2020

The following are additional responses to questions and comments forwarded to the Court through the State Bar Association of North Dakota. Responses to earlier questions and comments were posted on the Supreme Court web page on March 27, 2020. Thank you for the submission of questions and comments. All of your questions and comments have been considered, answers have been provided to many of your questions, and we have provided a response to many of your comments. We will continue to review questions and comments provided through SBAND. Your input is appreciated.

  1. Will the Court take action to waive or protect stimulus checks from garnishment for unpaid child support obligations? No. We have been in contact with the Director of Child Support Services for the North Dakota Department of Human Services. North Dakota Child Support Services has been seeking, without success, to secure local discretion over the disbursement of stimulus payments. North Dakota Child Support Services will be issuing a public statement in the immediate future.

    Other Child Support Service news: Child Support Services has transitioned more than 70% of its staff to working from home. Receipt and disbursement of payments have continued uninterrupted. Child Support Services will work with obligors to suspend collection efforts resulting from the loss of income related to the current emergency.

  1. Will attorneys be “essential services” in the event the Governor issues a shelter-in-place order? The Court is aware of the essential nature of many proceedings within the judicial system. We are fortunate in North Dakota to have exceptional communication between the three branches of government and our expectation is the exceptional communication will continue and we will have input on the scope of law-related activities.


  1. Will there be further direction regarding dockets going forward? Yes, when we are able to determine we are on the path to resuming normal operations we will provide additional guidance regarding dockets. Each district operates with a different number of judges and different geographic challenges. Our district judges will have significant input in how we resume normal operations. Unfortunately, the date we will be able to return to normal operations is not certain.


  1. Will the Court consider the use of alternative video platforms for court proceedings? We have received many suggestions for different electronic platforms for conducting remote proceedings. Thank you. All of the suggestions are welcome. Our district judges have been using a variety of platforms for remote hearings and, to the extent possible, our district judges continue to conduct court proceedings. We are committed to resolving as many proceedings, both criminal and civil, through reliable electronic means as possible. We can, and will, get better at implementing reliable electronic means.


  1. Is the Court willing to establish a committee to allow practicing lawyers to have input in shaping the judicial system’s response to the emergency? The Court will reach out to Tony Weiler, the Executive Director of SBAND, to arrange an electronic conference with the chairs of each SBAND practice section. We also understand SBAND represents a variety of viewpoints. On many issues we have received comments that are difficult to reconcile. For example, some practitioners have expressed disappointment with the continuation of any judicial functions while others are requesting we continue with all proceedings, including jury trials. The Court will continue to balance its priority of ensuring the health of its team members and those who use the judicial system with the rights of litigants to have their cases resolved.


  1. Comment: Criminal defendants who are being held in custody are entitled to a fair and speedy jury trial. We agree. We appreciate the passionate comments we have received advocating for the rights of individuals being held in custody. We are committed to resuming jury trials when appropriate. However, we believe the current suspension of jury trials is necessary and consistent with guidance provided by both federal and state authorities.


  1. Will the Court waive some requirements related to having documents notarized? In our prior responses we addressed a question regarding remote attestation by a notary. We have subsequently received several emails referencing specific documents and the requirement to have a notary witness the document. Rule 11 of the North Dakota Rules of Civil Procedure was recently amended to be consistent with Chapter 31-15 of the North Dakota Century Code expanding the use of unsworn declarations. Please refer to Rule 11 and Chapter 31-15 for guidance on using unsworn declarations.


  1. Will the Court issue specific guidance on parenting time orders? On April 1, 2020, the Court issued a statement reminding parents that all court orders for parenting time and support remain in force and an existing parenting time order can only be modified through agreement or a new order. We are confident most parents are working together during this emergency to pursue what is best for their children. We are also confident that most parents who were confused about whether the emergency required them to continue to follow the order will read the Court’s statement and follow their existing parenting plans. Hopefully the Court’s expansion of its family mediation program, as described in the following paragraph, will be able to resolve some of the remaining compliance issues. Unfortunately, some parents will not follow their existing parenting plans, whether for good cause or in violation of the parenting plan. In those instances, formal enforcement proceedings are necessary for our trial courts to intervene.

    In order to minimize family conflict and to help parents quickly resolve issues, the Court has developed the Expedited Parenting Time Mediation Program. The program offers one-hour of telephone mediation at no cost to parties facing parenting time disputes. The program is limited to cases filed in North Dakota in which a parenting time plan has been established or an interim order addressing parenting time has been entered. Counsel for the parties are allowed to participate in the mediation. In order to participate in the program, parties must submit a request for mediation. The request form is available online. After receiving the form, the program administrator will assign a mediator, who will provide the parties with a selection of possible dates and times for the one-hour mediation session. If the parties reach an agreement through the mediation, the mediator will prepare a written summary for the parties to sign noting all agreements made in the parties' own words.


  1. Why did the court suspend most residential eviction proceedings

    Administrative Order 27 addressed residential evictions which are required by law to have a hearing within 15 days of service of the summons.  Most of our district courts are currently unable meet those deadlines when the majority of courthouses are closed or only open to the public by appointment. In addition, approximately 80% of judicial branch employees are working at home. Our district courts are challenged to meet deadlines in emergency cases such as mental health and domestic violence as well as constitutionally mandated proceedings in criminal cases, which the Court has little or no ability to delay. Section 27-02-27, N.D.C.C. grants the Supreme Court authority to declare a judicial emergency when an emergency endangers or infringes on the normal functioning of the court.  The COVID-19 pandemic has created such an emergency, requiring the issuance of an order temporarily suspending hearings in most residential evictions.

    Residential eviction proceedings required suspension through an emergency order based on the volume of cases and because the deadlines imposed by law could not be met as a result of the COVID-19 pandemic emergency. Our order included an exception to allow evictions to proceed if there is a showing of good cause to the trial court. Our order also anticipates residential eviction proceedings may resume during the emergency and provides for the hearings to be conducted through reliable electronic means, but with extended deadlines. Our order does not modify the rights or obligations of the parties to a residential lease. Our limited technology resources are being applied where needed most and it currently is not possible to conduct the same number of hearings electronically as we could have conducted inside our courtrooms. We are adding more cases to our dockets every day. Our district court judges and staff are working hard to handle as many cases as they can during the emergency.


  1. Does Amended Administrative Order 27 regarding evictions overrule Section 4024 of the CARES Act regarding rental properties with federal assistance or federally related financing?

    Administrative Order 27 addresses whether North Dakota courts are available to adjudicate a certain type of civil proceeding, in this case residential evictions. The Order does not attempt to address limitations imposed by other law(s) on any person seeking to terminate North Dakota leases.