Forms Committee Report – September, 2016 – CALSPro Conference

Forms Committee Report

Sept. 30, 2016

CALSPro 2016 Annual Conference, 10/8/16

This year saw few changes to court forms.  The majority of those involve the enforcement of judgment.

There is a new Current Dollar Amount from the Enforcement of Judgments form that was revised in April, 2016.

There were two changes to the Earnings Withhold Order (EWO) forms.  The latest operative EWO was revised effective on July 1, 2016.  The latest form references a website for employer’s to use to calculate the proper amount to withhold from the debtor who is a low income earner.   Legislation modified the formula for wage garnishments of a low income earner, reducing the worker’s percentage of 25% of “disposable income” subject to execution.

The Judicial Council proposed changes to the Writ of Execution and Order of Examination form.

The Writ of Execution form is still being considered, and will not be revised in 2017.  The Order to Appear for Examination will be submitted for approval to the Judicial Council in a couple of weeks. The proposed changes add instructions on page two to the judgment creditor to have the order served by a sheriff, registered process server, or someone specially appointed for the order to be enforced.

All current forms may be found on the California Judicial Council web site at http://www.courts.ca.gov/forms.htm

 

 

 

 

Officer of the Court

I have been flushing out my bloated email account and came across the following written response to a process server in 2011 who had put the phrase “Officer of the Court” on his business card and asked for my opinion about it.

The opinion then seems to be still relevant, but I have since recently spoken to another process server who gave me another perspective about it. More to come – maybe.

I welcome your thoughts.

    I have done a little research on this topic recently, and our Criminal Law Speaker at our PSI dinner in Hayward Friday evening addressed it because, coincidentally, it came up.

An “officer of the court” (according to a Wikipedia entry) is described as follows:

“The generic term officer of the court (not to be confused with court officers) applies to all those who, in some degree in function of their professional or similar qualifications, have a legal part—and hence legal and deontological obligations—in the complex functioning of the judicial system as a whole, in order to forge justice out of the application of the law and the simultaneous pursuit of the legitimate interests of all parties and the general good of society.

They can be divided into the following functional groups; in most case various synonyms and parallels exist as well as a plethora of operational variations, depending on the jurisdiction and the changes in relevant legislation …”

    There is not a clear definition, having checked 2 law dictionaries, “Words and Phrases” and “Corpus Juris Secundum” in the law library.

    Black’s Law Dictionary defines it as follows:  “A person who is charged with upholding the law and administering justice.”

    Obvious and most common examples of an “officer of the court” would be a judge, clerk, bailiff, sheriff, peace officer, and since about the early 1900s, attorneys.  It could also be a court interpreter, receiver, and court stenographer, all of whom are in some manner are appointed by a court or participate in or serve to facilitate the administration of justice in the courts.

   What I have concluded is that an officer of the court is one who is acting at the direction of or under the authority of the court.

    Process servers in some states derive their authority from the court.  Arizona process servers, for instance, are “certified” by the AZ Supreme Court, and therefore, are identified as an “officer of the court” by statute (ARS §11-445(I)). .  There are others. Oklahoma licensed process servers are referred to as an “officer of the court” (ORCP § 12-158.1(C)(1)). Illinois refers to those process servers upon special appointment.

    On the other hand, some states specially forbid use of the term.  The New Jersey Professional Process Servers Association has promulgated a Canon of Ethics prohibiting their members from using the term, and a Fifth Circuit Court of Appeal case ruled that a Texas process server was not an officer of the court for purposes of removal (Herron v. Continental Airlines, Inc., 73 F.3d 57 (1996))  That case cited as precedent a U.S. Supreme Court decision:

“… Our decision is guided by Cammer v. United States, 350 U.S. 399, 76 S.Ct. 456, 100 L.Ed. 474 (1956), holding that an attorney was not a court “officer” within the ordinary meaning of that term:

Certainly nothing that was said in Ex Parte Garland[, 4 Wall 333, 18 L.Ed. 366 (1866) ] or in any other case decided by this court places attorneys in the same category as marshals, bailiffs, court clerks or judges. Unlike these officials a lawyer is engaged in a private profession, important though it be to our system of justice. In general he makes his own decisions, follows his own best judgment, collects his own fees and runs his own business. The word “officer” as it has always been applied to lawyers conveys quite a different meaning from the word “officer” as applied to people serving as officers within the conventional meaning of that term. We see no reason why the category of “officers” subject to summary jurisdiction of a court under Sec. 401(2) should be expanded beyond the group of persons who serve as conventional court officers and are regularly treated as such in the laws.

…”

    What is emerging for me is that the term “officer of the court” is one whose authority to act is derived from the court, as an officer thereof – similar to (but not the same as) a “Court Officer”, or a “Public Officer”.  a California Registered Process Server does not derive that authority from the court by appointment or certification.  Our authority is a statutory creation, setting forth a registration requirement with the county clerk, a bonding requirement, and a fingerprinting requirement.  Therefore, I do not consider a California Registered Process Server an officer of the court.

   We may serve process, and do so in an analogous manner as those other officers of the court (sheriffs), but that does not make us an officer of the court.

   That being said, our speaker at our dinner disagrees, and based on the Black’s Law Dictionary definition I read during our discussion, he concluded that we were officers of the court when serving process as an extension of the court, and serving process, and would have no problem referring to a process server that way.

 

 

Subpoenas for HIIPA Records

A recent public post by a lawyer writing for ACH Media website entitled You Must Respond Carefully When You Are Served With a Subpoena caught my attention when he made the following assertion:

A court subpoena carries more weight than one from an attorney.

This did not seem legally correct at the time.  Self-initiating discovery in civil cases has been the trend in both federal and state courts starting in the mid-1980s, wherein lawyers, as officers of the court, were permitted by statute to issue subpoenas to witnesses for depositions and trials, without going to the courthouse to do so. Regardless of who or how it was issued, any objection to the subpoena would find the follow the same route through the court in the form of a motion to quash service or to modify the scope of the subpoena, or even a protective order.

After re-reading the article, I then realized that the it was written by a lawyer with an intended audience of risk managers or the people in health information management at hospitals.  The tenor and topic of the article was a good, solid directive to those dealing with the release of patient’s healthcare records in response to subpoenas and search warrants under the Health Insurance Portability and Accountability Act (HIIPA).

The author provided no authority for his assertion about court issued vs. attorney issued subpoenas. He alluded to the lack of a notification requirement under HIIPA that would also require a patient’s written consent or a court order to release healthcare records.

Upon a little research, this characterization and distinction between a court and attorney issued subpoena is found in 45 CFR 164.512(e), wherein this notification is required under HIIPA.

I am assuming that is where it came from. I have not found any other authority why a court issued or attorney issued subpoena would be any more or less valid and enforceable.

Civil discovery laws are state-specific. Some states have not enacted a statutory construct for providing a patient notice when their records are being subpoenaed.

California, and I assume other states, have procedures that provide such sufficient notice.  California did it almost 10 years before HIIPA became law when they enacted the consumer notice requirement for serving subpoenas that demand production of an individual’s personal records.  (See CCP sec. 1985.3, et seq.) Because of this notification provision, it was already HIIPA compliant.

So, in that context, the author didn’t explain the reasoning for that statement. It was factually correct, but not completely correct. At least not in California.

 

New York Passes Bill to Protect Process Servers

Governor Andrew Cuomo has signed into law bills S2991-A / A6772-A making an assault on a process server, among other professionals, a felony. The law will go into effect on November 1, 2016.

Adding “process server” to the list of those deserving special protection, an assault on a process server would become a class D Felony. An assault is when the person “inten[ds] to cause serious physical injury to another person, he causes such injury to such person or to a third person.”

NY combines both the crime of assault and battery into a single law. California, for instance, makes it a crime for assault (imminent threat and present ability to cause serious injury) and battery (the unlawful contact resulting in injury). Those statutes are found in Penal Code secs. 241 (assault) and 242 (battery).

This NY law does more than protecting process servers from an assault.

The law also amends NY Penal Law 120.05, adding a new sub-division 14:


With intent to prevent or obstruct a process server, as defined in Section eighty-nine-t of the general business law, from performing a Lawful duty pursuant to article three of the civil practice law and Rules, or intentionally, as retaliation against such a process server For the performance of the process server’s duties pursuant to such Article, including by means of releasing or failing to control an animal Evincing the actor’s intent that the animal prevent or obstruct the Lawful duty of the process server or as retaliation against the process Server, he or she causes physical injury to such process server.

It also appears to add a crime of obstructing a process server from performing a lawful duty of serving process, or in retaliation. This the 19th state and the Federal law which makes it a crime to obstruct service. (See a list of those laws here.) The law also further prohibits the use of an animal to obstruct or retaliate if the server sustains physical injury, implying that there is no obstruction or retaliation with an animal without an injury. Intimidation is OK, but not obstruction or retaliation without physical injury. There seems to be an unintended distinction between culpability between the assault resulting in “serious physical injury”, and the obstruction or retaliation with an animal resulting in “any physical injury”.

This is going to help NY process servers, and could spread to other states looking for an opportunity to pattern a similar law elsewhere.

View a discussion on the Process Server Institute Facebook page or comment below.

Federal Rule 5 – Proposed Amendments

The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States is proposing a change to Federal Rule 5, among others.  This is really the only change that could potentially affect process servers.

My local court (USDC, ND Cal) requires mandatory efiling.  This proposed amendment would mandate it in all federal courts throughout the country, and not rely on local rules.  Pro se litigants will be exempt from efiling.  A proof of service of a summons, application for a writ of attachment, etc. will all have to be filed electronically by the lawyer. This may affect process servers.  If approved, the changes will go into effect on December 1, 2018, with or without revision.

The amendment retains the ability to personally serve opposing counsel, but allows for service of notice on a consenting registered party by electronic means. Any documents to be filed, subsequent to the complaint, will require efiling.

A comment to the proposal explains why this rule is being amended:

Provision for electronic service was first made when electronic communication was not as widespread or as fully reliable as it is now. Consent of the person served to receive service by electronic means was required as a safeguard. Those concerns have substantially diminished, but have not disappeared entirely, particularly as to persons not represented by an attorney.

Here is a link to the new proposal.  See page 203, et seq.

 

Opening a Levy File with the Sheriff Requirement Changes in 2017

Writ of Execution-pg 11California AB 2211 was signed into law by the governor which will allow a registered process server “cause to be delivered” a letter, fees, and a writ to open a levy file with the sheriff.  The amendment removes the requirement that a registered process server open the file. The law becomes effective on January 1, 2017.

It does not change the law requiring that a registered process server to be the one serving the actual attachment or levy.

This will hopefully relieve process servers from waiting in line for 2 hours in Los Angeles just to open the levy file.  Although inferred, the amendment did not unequivocally address the closing of the file by filing the proofs of service within 5 court days after commencing the levy.

What that will do is free up time of the RPS and allow a messenger or in-house court runner to open the file instead.  I wonder how that might work, given the problems I have fixed at the counter when I have opened levy files, saving a return trip. I also wonder if this might result in more levies being served by non-registered process servers.

The bill also re-worded, and made a stronger statement about recovering costs for the registered process server’s fee for services of the writ.

The bill had no opposition.

The law, as amended, is posted here.

Gated Community Access for Service of Process Expanded

California SB 1431 has been signed by the governor amending CCP § 415.21, effective January 1, 2017.Gated Community Guard

It would require an investigator who is employed by an office of the Attorney General, a county counsel, a city attorney, a district attorney, or a public defender, upon the display of proper identification, to be granted access to a gated community for the sole purpose of performing lawful service of process or service of a subpoena.

The full text of the bill is posted here.

We posted Blog comments last September when an amendment to this law removed the requirement that the server identify the name of the defendant or witness to be served.

This law was initially passed in the 1993 as a response to the holding in a Court of Appeal decision which validated a substituted service on a security guard at a gated community.  See Bein v. Brechtel-Jochim Group, Inc., 6 Cal.App.4th 1387, 8 Cal.Rptr. 351 (1992).

Service in Private Houses

This is a question sent to me privately. I thought I might start the discussion.


I’m concerned with the rising requests for service on UDS [unlawful detainers] at a private single family dwelling that rooms are being rented out & said occupants of these rented rooms are being evicted.  In particular our right as process servers to enter said residence..


Follow a parallel discussion on the Process Server Group Facebook page.

Forms Committee Report – June, 2016 – CALSPro

Forms Committee Report

June 17, 2016

CALSPro Board Meeting, 6/25/16

The California Judicial Council (CJC) will be revising two Earnings Withholding Order forms, effective July 1, 2016.

The change reflects a new formula for the employer to calculate the disposable income of low-income earners, and will reference a URL with an online calculator for the proper amount to withhold. The form will be available for use on the CJC website when it goes into effect in July.

The Current Dollar Amounts Exempt from the Enforcement of Judgments form changed effective April 1, 2016.


7/1/16 Update:  Below are links to the newly revised forms, effective 7/1/16

Earnings Withholding Order

Earnings Withholding Order for Elder and Dependent Adult Financial Abuse


Tony Klein

New Law Allowing an RPS to Renew a Registration Creates Legal Conflict

The Registered Process Server Act was amended, effective January 1, 2016, allowing a renewing registered process server to be issued the same registration number if there has not been a 3 or more year lapse of the period of registration. (B&P § 22355).

B&P § 22355

(a) The county clerk shall maintain a register of process servers and assign a number and issue an identification card to each process server. The county clerk shall issue a temporary identification card, for no additional fee, to applicants who are required to submit Request for Live Scan forms for background checks to the Federal Bureau of Investigation and the Department of Justice. This card shall be valid for 120 days. If clearance is received from the Federal Bureau of Investigation and the Department of Justice within 120 days, the county clerk shall immediately issue a permanent identification card to the applicant. Upon request of the applicant, the permanent identification card shall be mailed to the applicant at his or her address of record. Upon renewal of a certificate of registration, the same number shall be assigned, provided that the applicant is renewing registration in the same county in which he or she was previously registered and there is no lapse of three or more years in the period of registration.

 

(b) The temporary and permanent identification cards shall be not less than 31/4 inches by 2 inches and shall contain at the top the title, “Registered Process Server,” followed by the registrant’s name, address, registration number, date of expiration, and county of registration. In the case of a natural person, it shall also contain a photograph of the registrant in the lower left corner. The identification card for a partnership or corporation registration shall be issued in the name of the partnership or corporation, and shall not contain a photograph.

 

The 2016 amendment created a conflict with B&P § 22351 regarding the fingerprinting requirement because the County Clerk is mandated in the statute to notify the Department of Justice upon lapse in the registration that the subsequent arrest notification is no longer needed.

 B&P Code § 22351.5

(a) At the time of filing an initial certificate of registration or renewing a certificate of registration that has lapsed, the registrant shall also submit a completed Request for Live Scan form confirming fingerprint submission to the Department of Justice and the Federal Bureau of Investigation, in order to verify that the registrant has not been convicted of a felony. The clerk shall utilize the Subsequent Arrest Notification Contract provided by the Department of Justice for notifications subsequent to the initial certificate of registration.

 

(b) If, after receiving the results of the Request for Live Scan, the clerk is advised that the registrant has been convicted of a felony, the presiding judge of the superior court of the county in which the certificate of registration is maintained is authorized to review the criminal record and, unless the registrant is able to produce a copy of a certificate of rehabilitation, expungement, or pardon, as specified in paragraph (2) of subdivision (a) of Section 22351, notify the registrant that the registration is revoked. An order to show cause for contempt may be issued and served upon any person who fails to surrender a registered process server identification card after a notice of revocation.

 

B&P Code § 22351.5

  • Language in section directs the County Clerk to notify the DOJ after the RPS is no longer eligible for registration
  • Before 2016, that date was the day after the registration lapsed
  • Language was placed into the statute so that County Clerk complied with Penal Code 11105.2(d)

Penal Code § 11105.2(d)

Any entity that submits the fingerprints of applicants for licensing, employment, certification, or approval to the Department of Justice for the purpose of establishing a record of the applicant to receive notification of subsequent state or federal arrests or dispositions shall immediately notify the department when the employment of the applicant is terminated, when the applicant’s license or certificate is revoked, when the applicant may no longer renew or reinstate the license or certificate, or when a relative caregiver’s or nonrelative extended family member’s approval is terminated. The Department of Justice shall terminate state or federal subsequent notification on any applicant upon the request of the licensing, employment, certifying, or approving authority.

  • The County Clerk was mandated then to give notice to the DOJ terminating subsequent arrest notification after the registration lapsed, resulting in a gap which required another fingerprint submission.
  • Penal Code § 11105.2(d) only requires notification when the applicant may no longer renew or reinstate the license or certificate
  • DOJ does not require notification after the date of the lapse because the applicant is still eligible for renewal for 3 years after that date
  • This presents an unnecessary burden for renewing process servers who must be re fingerprinted when they renew their registration when this 3 year window
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