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Welcome to the 2013

Legislative & Rules Update

Faculty

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• Cathy Derden, Staff Attorney

• Janica Bisharat, Director, Court Management Division

• Julie Cottrell, ISTARS Systems Coordinator

• Scott Ronan, Sr. Manager, Problem Solving Courts/Sentencing Alternatives

• Imelda Ramirez, Statewide Court Assistance Officer


Highlights of Supreme Court Rule Changes

Idaho Appellate Rules


Rule 28(f) – Preparation of the clerk’s or agency’s record.

This subsection on arrangement and numbering was amended to provide that the numbering shall include every page included in the record even if it was not a filed document, such as the title page, the table of contents, the index, and the register of actions.

Idaho Rules of Civil Procedure


Rule 7(b)(5)– Video teleconferencing for mental commitment hearings. This is a new permissive rule that allows for hearings concerning an initial involuntary mental commitment or a continuing involuntary commitment to be conducted by video teleconference via simultaneous electronic transmission under certain conditions. In addition, the audio of the video teleconference shall be recorded by the court and the court shall cause minutes of the hearing to be prepared and filed in the action.



Rule 7(d) – Declarations. The Idaho Legislature recently amended Title 9, Chapter 14, by adopting a new section, I.C. § 9-1406, that allows for declarations under penalty of perjury in place of sworn statements, with a few exceptions, and sets out the form for such declarations.

A new rule, I.R.C.P. 7(d), has also been adopted providing that whenever these rules require or permit a written statement to be made under oath or affirmation, such statement may be made as provided in I.C. § 9-1406.



Rule 16(q) – Parenting Time Evaluation. A “parenting time evaluation” is an expert investigation and analysis of the best interest of children with regard to disputed parenting time issues.

The rule addresses a number of related issues, including the qualifications of a parenting time evaluator, what information should be included in motions, stipulations and orders for an evaluation, the scope of the evaluation and the form of the report.

Idaho Criminal Rules


Rule 2.1 – Declarations.

•Similar to the addition to the Civil Rules of Procedure, a new rule has been added to the Criminal Rules providing that whenever these rules require or permit a written statement to be made under oath or affirmation, such statement may be made as provided in I.C. § 9-1406.

Idaho Criminal Rules


Rule 32 – Standards and procedures governing presentence investigations and reports.

• The amendments to this rule were proposed by the Felony Sentencing Committee, chaired by Justice Joel Horton. The content of the report is to include the result of any substance abuse evaluation, mental health evaluation, or psychosexual evaluation, including any report prepared pursuant to I.C. § 19-2522 or I.C. § 19-2524, but excluding the content of any evaluation or report prepared pursuant to I.C. § 18-211 or I.C. § 18-212.

•Once any PSI is prepared for the purpose of assisting a sentencing court, it may be released to any district judge for that purpose. There are also new subsections addressing the availability of the report to evaluators and to problem-solving courts.

Idaho Juvenile Rules


Rule 33 – Summons CPA.

The amendment updates language in the summons to mirror legislative changes to I.C. § 16-1622 (7) regarding out-of-home care for fifteen of the last twenty-two months.



Rule 41 – Adjudicatory hearing.

The rule clarifies that aggravated circumstances can be raised at any time during a child protection act proceeding. The rule also clarifies the definition of protective supervision consistent with changes made in I.C. § 16-1602.



Rule 46 – Annual permanency hearings.

The amendment clarifies timelines consistent with statutory changes. Certain descriptions of findings and other requirements of the hearing were moved to the statute to consolidate and make clearer the roles and responsibilities at the permanency hearing.

Idaho Court Administrative Rules


Rule 54.1 – Ex-Parte Communications.

The purpose and intent of Rule 54.1 is to outline a process whereby a judge is allowed to receive and review communications about guardianship and conservatorship cases to determine if the communication relates to misconduct or malfeasance of the guardian or conservator.


Q & A

Any questions about the 2013 rule changes?


Summary of Selected Legislation

Appropriations


H0306 – Supreme Court Appropriation for FY 2014; includes appropriations for three additional district judge positions, three additional court reporters and two additional magistrate judge positions; increase of 3.6% from FY 2013 appropriation.

H0313 – Appropriation bill for Division of Public Works for FY 2014; includes $1,500,000 for Capitol Annex infrastructure.

S1181– Appropriation bill for the Millennium Fund for FY 2014; appropriates $1,859,200 to IDOC for community-based substance abuse treatment services, and $450,000 to the Supreme Court for youth courts, tobacco and alcohol diversion courts and programs for tobacco and substance abuse status offenders.

Children and Families


H0148 – Amends I.C. § 16-1614 to provide that counsel shall be appointed for a guardian ad litem in a CPA case when the child is under 12, and may appoint counsel for the child as well; if a guardian ad litem cannot be appointed, the court shall appoint counsel for the child; provides that where the child is 12 or older the court shall appoint counsel for the child and may also appoint a guardian ad litem, and where appointment of counsel is not practicable or appropriate may appoint counsel to represent the guardian ad litem.

H0256 – Amends provisions of the Child Protective Act and parental termination statutes; amends definition of aggravated circumstances; clarifies definition of protective order and protective supervision; clarifies timelines for reunification, guardianship, termination and adoption.

HB 148

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Then go to the Relationship tab, and select the child and GAL and indicate the connection via the relationship tab.




H0148 – Amends I.C. § 16-1614 to provide that counsel shall be appointed for a guardian ad litem in a CPA case when the child is under 12, and may appoint counsel for the child as well; if a guardian ad litem cannot be appointed, the court shall appoint counsel for the child; provides that where the child is 12 or older the court shall appoint counsel for the child and may also appoint a guardian ad litem, and where appointment of counsel is not practicable or appropriate may appoint counsel to represent the guardian ad litem.

H0256 – Amends provisions of the Child Protective Act and parental termination statutes; amends definition of aggravated circumstances; clarifies definition of protective order and protective supervision; clarifies timelines for reunification, guardianship, termination and adoption.

HB 256


Remember that Aggravated Circumstances is a “Finding” for children in CPA cases – and is easily entered when resulting hearings for these cases for a single child or selected children.

If for any reason you miss adding the aggravated circumstances when entering hearing results you can add that information in the Detail screen for the child:



Reminder: Aggravated circumstances shortens the time period. The court SHALL hold a permanency hearing within 30 days after the finding. If the permanency plan has a goal of termination the department SHALL file a petition to terminate as required.

The permanency plan will be filed at LEAST 5 days prior to the permanency hearing.


Reminder where to add the TPR information and Adoption information for each child:

It’s important to remember to add because it adjusts the required “time limits” for subsequent actions on the case.




S1119 – Requires income withheld by employer for child support to be sent to the Department of Health and Welfare; requires income withholding orders to be issued using required income withholding form.

1. The Uniform Order will be treated like all other orders in cases involving children.

2. The form does not have to be redacted by the parties in order to file it because the content is required by statute.

3. The order should be placed in the sealed envelope along with the rest of the file; if there is a request from a non-party to view the order, the clerk must provide a redacted order.

4. For purposes of the Uniform Order, the Employer that is withholding the wages is to be considered a party to the action and can view the un-redacted version.



S1122 – Requires only temporary modification of child custody orders when one of the parents is a service member who is deployed; permits expedited modification hearings to allow a party who is a service member to appear; permits deployed service members to appear at modification hearings by telephone, video teleconference or Internet.

When notified this situation exists, provide the court number for the deployed service person to call.


Add the hearing call number to the notice of hearing so the deployed service member will know the time, date, and correct number to call to participate from their deployed location. (Note: other special accommodation requests would be determined by the Judge.)

Courts

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• H0029 – Adds new district judge positions with resident chambers in Canyon County, Ada County, and Jefferson County.

• H0103 – Removes the June 30, 2013, sunset date on the emergency surcharge.

• H0153 – Permits county commissioners to increase jurors’ per diem from the current $10 per day to a greater amount of up to $50 per day.

Crimes & Criminal Procedure


H0147 – Amends procedures for the appointment of counsel for indigent defendants; replaces “needy” with indigent; sets presumptive standards for a finding of indigency; requires counsel to be appointed for indigent defendants in all cases in which the penalty set by law includes a term of incarceration; provides that only persons who plead or are found guilty can be required to pay reimbursement for public defender services.

H0149 – Amends provisions relating to appointment of counsel in JCA proceedings; requires waivers of counsel to be in writing and on the record, and subject to certain findings; does not permit waiver where the juvenile is under 14, where there is a recommendation that the juvenile be committed to the custody of DJC, where a sex crime is charged, where the charge is a felony, in hearings to waive jurisdiction, in competency proceedings, and in recommitment proceedings.


Remember, to add the attorney for the CHILD if appointed, and to capture the information in the minutes. If the child waives also capture that information in the court minutes.

When an attorney withdraws from a case:


Remember to go into the attorney tab and uncheck the box for “primary” and check the box for “withdrawn”. Do NOT

delete an attorney who has been active on a case. Delete may be used only when an attorney was entered in error.



S1016 – Deletes the provision of I.C. § 41-1039(3) stating that a bail agent’s license filed with clerk of the district court is proof that the bail agent is properly licensed. http://www.doi.idaho.gov/insurance/search.aspx

S1151 – Amends I.C. § 19-2604 to grant courts discretion to reduce a felony conviction to a misdemeanor if the defendant has been discharged from probation, has not been convicted of any felony since the conviction from which relief is sought, is not currently charged with any crime, and the reduction would be compatible with the public interest; if the application is filed within five years of the discharge from probation, relief could be granted only if the prosecuting attorney stipulates to it; if the application is filed at least five years after discharge, a stipulation from the prosecuting attorney would be required only for certain specified felonies.

ISTARS process for reducing a felony conviction to a misdemeanor:


First, add the newly reduced charge to the convicted statute in ISTARS.


Second, enter modification of sentence on the Disposition Tab

Update the automatic ROA as necessary


Third, send out copies of the order as instructed in the document.

This correct data entry will then be transmitted to the repository and become a permanent part of the electronic court record.

NOTE: Copies of withheld judgment orders or expungement orders are no longer required to be transmitted to the Administrative Office of the Courts.



SCR128 – Authorizes the Legislative Council to appoint a committee to undertake a study of the criminal justice system, with input expected from the Council of State Government Justice Center.

Motor Vehicles


H0274 – Authorizes cities to offer a traffic safety education program to all drivers issued an infraction citation by a city officer; participants would be subject to payment of all fines and costs for the violation, but by attending the program they would avoid being assessed points and having the infraction count as a moving violation for insurance purposes; cities could charge a fee of up to $25 for attending the program. The implementation date for this legislation is January 1, 2014.

S1048a – Provides that a driver’s license may not be suspended for a parking infraction.

Legislation from Previous Sessions


HB 648 - Originally enacted during the 2007 Legislative Session and amended in the 2012 Legislative Session with an effective date of March 1, 2013. Amends I.C. § 19-2522 to permit any report of a mental examination to be used to satisfy the requirements of the statute, so long as it provides the information needed for sentencing and is sufficiently recent (excludes § I.C. 18-210 and 18-211 competency evaluations); amends I.C. § 19-2524 to provide for screening of all defendants for substance use disorder or serious mental illness, unless the court waives such screening; provides for substance use disorder assessments by DOC and mental health examinations by DHW if need for such is identified by the screening; provides for the court to order community-based treatment if the defendant is placed on probation; and permits the court to order such/additional screening, followed by assessment and examination if indicated, at any time after sentencing when the court exercises jurisdiction over defendant.

HB 648


There is a new PSI order and process which will be in place in all 44 counties by July 1, 2013.

To assist with that process and training, we will be adding to your ISTARS documents a “PSI Notice and Order Packet”.

There is only one ROA code required for any PSI at this time, which is indicated on the document and is “PSIO1-Order for Presentence Investigation Report”.

A second document designed for data entry and transmittal purposes to the department of corrections is entitled “PSI Face Sheet” (may be referred to as WITS cover sheet). Please place the face sheet in a sealed envelope marked confidential after transmitting the information to the PSI evaluator and updating any necessary ISTARS Party information. It should not be entered into the ROA.

Legislation from Previous Sessions


SB1067 – Enacted during the 2011 Legislative Session with an effective date of July 1, 2013 – Requires collection of a DNA sample and thumbprint from all persons found guilty of a felony, rather than those found guilty of only certain specified felonies in I.C. §19-5506.

Any questions relating to 2013 legislation?


Q & A


ISTARS Updates

Court Lead Workers


On July 1st please set your ISTARS statute table default to the new 201307 statute table.

The changes to this statute table have been communicated to the vendors and law enforcement agencies who provide e-filings to the court.

The new statutes added as a result of legislation will be listed in the July 1 updates memo.


To complete the setup for the new ISTARS statute table:1. Click on Court Setup2. Under Court System Values, scroll down to

Current Statute Revision3. Type in 2013074. Click on Save

Reminder: Hourly Updates to the Repository


Since the data updates to the repository have changed from once a day to once an hour, it is important to consider how this near real-time transmission of data impacts work practices.

Example: A case is filed with a search warrant and arrest warrant. Enter the warrant and sealed information into ISTARS right away.

New ISP Officers to be entered into ISTARS Agency Table:


Idaho Institute for Court Management:October 28 – 31, 2013 ~ Boise, Idaho

New Clerk Orientation:The fourth Friday of every other month.

Training Schedule and Archived Webinars Located at:http://isc.idaho.gov/judicial-education/home

Please send online training suggestions to: Hon. Michael McLaughlin at [email protected] Number: 1-888-713-3067

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Upcoming Training

For questions after the webinar, please contact:

Janica Bisharat, Director, Court Management Division(208) 334-2850 / [email protected] orThe Helpdesk at [email protected].

Thank you for joining us!

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