By Lori Fleming

The following is a list of rule amendments approved by the Idaho Supreme Court between May 1, 2019, and May 5, 2020.  The orders amending these rules can be found on the Idaho Supreme Court website at http://www.isc.idaho.gov/recent-amendments. Be sure to check the Idaho State Bar E-bulletin for your chance to comment on proposed amendments before adoption. Unless otherwise indicated, all amendments and new rules are effective July 1, 2020.

Idaho Appellate Rules

The Idaho Appellate Rules Advisory Committee is chaired by Chief Justice Roger Burdick.

Rule 23.  Filing Fees and Clerk’s Certificate of Appeal – Waiver of Appellate Filing Fee.  Idaho Appellate Rule 23 sets forth the filing fees the Clerk of the Supreme Court is required to charge for appeals and petitions.  Consistent with the language of I.C. § 72-1375, the rule was amended to provide that individual claimants under the employment security law are exempt from paying any filing fees.  The amendment took effect June 26, 2019.

Idaho Court Administrative Rules

The Idaho Court Administrative Rule 32 Advisory Committee is chaired by Chief Justice Roger Burdick.

Rule 32.  Records of The Judicial Department – Examination and Copying – Exemption From and Limitations on Disclosure.  Subsection (g) of Idaho Criminal Rule 32 lists a number of court records that are exempt from disclosure and currently provides that any willful or intentional disclosure of such records may be treated as contempt of court.  The rule has been amended to also make the willful or intentional “accessing” of sealed or exempt court records subject to contempt.  In addition, subsection (j)(6) of the rule, governing the cost of copying records, has been amended to provide that the cost to make a paper copy of any record filed in a case with the clerk of the district court “shall be determined by the clerk, and shall not exceed the amount specified in I.C. § 31-3201.”

Rules 37 and 38.  Minimum Standards for Preservation, Destruction, or Disposition of Trial Court Records.  Idaho Court Administrative Rules 37 and 38 have been amended to provide that the digital entry of court records into the court’s automated case management system (i.e., the scanning of court records into Odyssey) is sufficient to meet the preservation requirements of the rules.  As amended, the rules clarify that, once a document has been digitally entered into Odyssey, it becomes part of the permanent court record and the paper copy may be disposed of unless specifically prohibited by rule.  Rules 37 and 38 have also been amended to prohibit the destruction of any record that is required to be filed conventionally pursuant to Idaho Rules for Electronic Filing and Service 5(a), 5(c), 5(f), or 5(k).  Examples of such records include original wills, demonstrative or oversized exhibits, sexually explicit images of a minor, and any other document or thing that cannot be scanned or otherwise converted to a digital format.

The following amendments to the Idaho Court Administrative Rules resulted from the work of the Guardianship and Conservatorship Committee, which is chaired by Judge Christopher Bieter.

Rule 54.  Guardianships and Conservatorships.  The rule was amended to require individuals seeking appointment as a guardian or conservator of a minor child to complete the Idaho Supreme Court’s online training course for guardians and conservators.

Rule 54.4.  Visitor Reports.  Subsection (d) of the rule was amended to require visitors in guardianship or conservatorship cases to complete and attach to their visitor reports a differentiated case management tool with monitoring recommendations.  The differentiated case management tool is an assessment tool that is designed to identify those guardianship and conservatorship cases in which increased monitoring and allocation of resources may be required. The tool itself is a questionnaire that evaluates the applicability of certain risk factors to the specific case.  Based upon the responses, the case is assigned to either a low, medium, or high monitoring track.

Rule 54.5.  Idaho Department of Health and Welfare Evaluation Committee Reports.  Consistent with the amendment to Rule 54.4 for visitor reports, subsection (c) of Idaho Court Administrative Rule 54.5 was amended to require the Idaho Department of Health and Welfare Evaluation Committee in guardianship or conservatorship cases to complete and attach to its committee reports a differentiated case management tool with monitoring recommendations.

Rule 54.6.  Professional Guardian and Conservator Certification.  As the population of Idaho grows, the need for professional guardians and conservators is expected to grow with it.  Currently, persons who provide guardianship or conservatorship services for a fee are not required to have a professional license, show completion of any relevant education beyond the Idaho Supreme Court’s basic online training course, follow standard ethical guidelines, or otherwise prove they are competent to provide needed services to some of Idaho’s most vulnerable citizens.  Consistent with I.C. § 31-3201G(3), which recognizes the importance of the adoption of standards of practice for guardians, the new Idaho Court Administrative Rule 54.6 provides a mechanism to ensure that professional guardians and conservators meet minimum standards of competency by requiring that they be certified by the Center for Guardianship Certification unless certification is waived by the court for good cause.  While the rule only makes certification mandatory for professional guardians or conservators, as defined in subsection (a), subsection (d) provides that the court can for good cause require any guardian or conservator to be certified.

Idaho Criminal Rules

The Idaho Criminal Rules Advisory Committee is chaired by Justice Richard Bevan.

Rule 4.  Arrest Warrant; Summons: Determination of Probable Cause.  Idaho Criminal Rule 4 was amended to provide a process for the application and issuance of arrest warrants by telephone or other electronic means. The amendments to the rule were modeled after Idaho Criminal Rule 41, relating to the issuance and execution of search warrants.  The new subsections (a)(1) through (a)(3) of Idaho Criminal Rule 4 require that the finding of probable cause supporting an arrest warrant be based on substantial evidence and that the warrant application be provided in the form of an affidavit or sworn oral statement. New subsection (a)(4) authorizes the magistrate to issue a warrant based on information communicated by telephone or other electronic means, provided that the affidavit or sworn oral statement supporting the issuance of such warrant must be filed with the clerk of the court and transcribed by the court upon request. Subsection (d)(1) was amended to permit the use of an electronic signature and to allow a law enforcement officer to sign a magistrate’s name to the warrant upon receiving verbal authorization from the magistrate to do so. The rule further provides that, following service of the warrant, the warrant must be returned to the magistrate, who must then endorse his or her name on it and enter the date it was returned to the magistrate, although the failure of the magistrate to do so does not in itself invalidate the warrant. Finally, subsection (d)(2) was amended to allow for the presentation and transmission of an arrest warrant by email, facsimile, or other electronic process.  The amendments took effect August 23, 2019.

Rule 5.  Initial Appearance Before Magistrate; Determination of Probable Cause; Advice to Defendant; Plea in Misdemeanors; Initial Appearance on Grand Jury Indictment.  The Idaho Supreme Court has adopted two separate mandatory Notification of Rights forms, one for use in felony cases, and one for use in misdemeanor cases.  Subsection (e) of Idaho Criminal Rule 5 was amended to clarify that, when a defendant is charged with both a felony and a misdemeanor, only the “Notification of Rights – Felony” form found in Appendix A of the Idaho Criminal Rules must be signed by the defendant and submitted to the magistrate at the initial appearance.  The amendment took effect August 1, 2019.

Rule 5.1. Preliminary Hearing; Probable Cause Finding; Discharge or Commitment of Defendant; Procedure.  Idaho Criminal Rule 5.1(a) sets forth the procedure that must be followed when a defendant charged by complaint with any felony waives his or her right to a preliminary hearing.  The rule was amended to require that, if a waiver a preliminary hearing form is used, it must be the Supreme Court “Waiver of Preliminary Hearing” form contained in Appendix A of the Idaho Criminal Rules.  The amendment took effect August 1, 2019.

Rule 25.  Disqualification of Judge.  Subsection (a) of Idaho Criminal Rule 25 was amended to clarify that the right to disqualification of a judge without cause applies only in felony and misdemeanor criminal actions. The intent of the amendment was to make clear that there is no right to disqualification without cause in infraction proceedings.  The amendment took effect April 21, 2020.

Rule 28.  Determination of Good Cause Regarding Statutory Trial Time Requirements.  The Court adopted this new rule in response to the state of emergency declared as a result of the COVID-19 pandemic. The rule sets forth a list of factors a trial court must consider in determining whether good cause exists to continue a criminal trial beyond the time requirements set forth in Idaho Code § 19-3501. Among the factors the court must consider are whether the delay beyond the statutory speedy trial deadline is necessary to safeguard the health or safety of the parties, jurors, attorneys, witnesses, court staff, or the public, and whether the delay was necessitated by the declaration of an emergency by the President of the United States or the Governor of the State of Idaho.  The new rule took effect March 18, 2020.

Rule 32.  Presentence Investigations and Reports.  Idaho Criminal Rule 32 provides that, once prepared, any presentence report may be released to any district judge for that judge’s use in sentencing.  While it is clear under the rule that a sentencing court may consider a presentence report prepared for a different case, the rule does not currently require that the parties be notified of the court’s intent to do so.  To ensure that the parties receive such notice, subsection (g)(1) of Rule 32 has been amended to provide that full disclosure of the contents of “any presentence report considered by any sentencing court” must be made to the defendant, defendant’s counsel, and the prosecuting attorney.  Subsection (h)(1) of the rule has also been amended to require that all presentence reports be filed and kept as sealed court records, the disclosure of which is prohibited except as expressly allowed by rule or by a court order entered pursuant to Idaho Court Administrative Rule 32(i).  Finally, consistent with the requirement of Idaho Criminal Rule 32 that presentence reports be sealed by court order after use in the sentencing procedure, the Idaho Supreme Court has entered an administrative order requiring the Administrative Office of the Courts to identify and seal all unsealed presentence reports in cases in which sentencing has occurred.  The administrative order was effective May 4, 2020.

New and Revised Appendix A Forms.  The Court adopted a mandatory “Warrant of Arrest (Felony)” form and a mandatory “Warrant of Arrest (Misdemeanor)” form, both of which are contained in Appendix A to the Idaho Criminal Rules.  In addition, the Court made a technical revision to the Certificate of Service on the mandatory “Waiver of Preliminary Hearing” form, contained in Appendix A, to reflect that service of the form may be made by someone other than the Clerk of the Court.

Idaho Infraction Rules

The Idaho Misdemeanor/Infraction Rules Advisory Committee is chaired by Judge Michael Oths.

Rule 9.  Judgment – Fixed Penalty Plus Court Costs for Infractions – Withheld Judgment and Suspended Penalties Prohibited – Deferred Payment Agreements.  The Infraction Penalty Schedule embedded in Idaho Infraction Rule 9 has been amended to correct some costs/fees inaccuracies, to remove what was formerly the infraction “Texting While Driving,” and to add the new infraction “Operation of Motor Vehicle While Operating Mobile Device.”  Formatting changes have also been made in the interest of consistency and to facilitate the ease of maintaining an accurate schedule.

Idaho Juvenile Rules

The Juvenile Justice Advisory Committee is chaired by Judge Mark Ingram.

Rule 10. Change of Venue; Temporary Transfer of Supervision. The rule has been amended to set out the process for “temporary transfers of supervision” (aka “courtesy supervision”) in juvenile probation cases. The new subsection (b), which is modeled after the process for transferring supervision in adult misdemeanor cases, requires the sending county’s probation department to contact and forward its file and other relevant information to the receiving probation department within 7 days.  The rule also clarifies that a temporary transfer of supervision is not a change of venue and shall not result in the opening of a court case in the receiving county.

Rule 17.  Sentencing Hearing.  Many magistrate courts order and authorize, as a condition of probation, the use of discretionary detention time in juvenile cases. There was, however, no rule setting out the procedure.  This amendment to Idaho Juvenile Rule 17 adding subsection (f) defines “discretionary detention time” and sets forth procedures that must be followed.  The new rule language states that the discretionary detention time cannot be applied to status offenders.  The sanction is permitted upon a finding of reasonable cause to believe the juvenile violated any term or condition of probation and written order of the court.  The amendment is modeled after Idaho Criminal Rule 33(e) and limits the amount of discretionary time a juvenile may serve to no more than 3 days and requires that the juvenile be given credit for any time served against the total detention time ordered in the judgment.

Rule 18.  Violation of Formal Probation; Violation of Informal Adjustment.  Idaho Juvenile Rule 18 was amended to clarify a court’s options following a violation of formal probation or informal adjustment.  As amended, the rule states that, upon finding a violation, the court may enter an order imposing any suspended term of detention or suspended commitment but must comply with the standards and procedures for commitment “pursuant to Idaho Juvenile Rule 19.”  It also clarifies that, in the case of an informal adjustment, the court may impose any sentence available to it “pursuant to the Idaho Juvenile Corrections Act.”

Idaho Misdemeanor Criminal Rules

The Idaho Misdemeanor/Infraction Rules Advisory Committee is chaired by Judge Michael Oths.

Rule 6.  First Appearance of Defendant – Plea of Defendant – Trial Date Notice or Continuance Notice.  Idaho Misdemeanor Criminal Rule 6(c) requires a defendant appearing for the first time before the court on a uniform citation or sworn complaint to sign and submit a form entitled “Notification of Rights – Misdemeanor.” The rule was amended to clarify that, when a defendant is charged with both a felony and a misdemeanor, only the “Notification of Rights – Felony” form found in Appendix A of the Idaho Criminal Rules must be submitted.  The amendment took effect August 1, 2019.

Idaho Rules of Civil Procedure

The Idaho Civil Rules Advisory Committee is chaired by Justice Robyn Brody.

Rule 69.1/Appendix B.  Garnishment Forms.  The Court amended the Rule 69.1(a) “Notice of Exemptions” form and the Rule 69.1(c) “Claim of Exemptions or Third Party Claim” form to reflect statutory increases to the dollar values of certain exemptions.  The revised forms were effective March 23, 2020, and are available on the Idaho Supreme Court website.

Idaho Rules of Evidence

The Evidence Rules Advisory Committee is chaired by Judge Molly Huskey.

Rule 101.  Title and Scope.  Subsection (e) of this rule was amended to clarify that extradition or rendition proceedings are among the criminal proceedings to which the Idaho Rules of Evidence do not apply.  The amendment took effect May 28, 2019.

Rule 805.  Hearsay within Hearsay.  The rule was amended to state that hearsay within hearsay is not excluded under the hearsay rule “if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.”  The amendment took effect May 28, 2019.

Lori Fleming received her Juris Doctorate from the University of Idaho College of Law in 1998. After law school, she completed a two-year clerkship for United States Magistrate Judge Mikel H. Williams. Following her clerkship, she worked for almost 20 years as a Deputy Attorney General in the Appellate Unit of the Criminal Law Division of the Idaho Attorney General’s Office. She has been the Staff Attorney for the Idaho Supreme Court since September 2019.