General Division-Montgomery County Common Pleas Court

 

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Rule Changes

NOTICE

MONTGOMERY COUNTY COMMON PLEAS COURT, GENERAL DIVISION

AMENDMENTS TO LOCAL RULES 1.01 – 1.41

(EMERGENCY STATUS – EFFECTIVE MARCH 21, 2014)

 

The General Division of the Montgomery County Common Pleas Court adopted amendments to Local Rules 1.01 – 1.41 effective March 21, 2014

Pursuant to Mont. Co. C.P.R. 1.03 of the Local Rules of Practice and Procedure for the Montgomery County Court of Common Pleas and Rule 5 of the Rules of Superintendence for the Courts of Ohio, the adopted amendments are being published for a sixty-day comment period beginning Friday, March 21, 2014, through Monday, May 19, 2014.

Comments regarding the adopted amendments to Local Rules 1.01 – 1.41 can be submitted via email to rulecom@montcourt.org or in writing to:

James E. Dare, Court Administrator

Montgomery County Common Pleas Court

41 N. Perry Street

P.O. Box 972

Dayton, OH  45422

Comments must be received by 4:30 p.m. on Monday, May 19, 2014

 


Rule 1.01 – Rules of Construction

Amended 3/4/14; effective 3/21/14

A.      FOREWARD:

The General Division of the Common Pleas Court for Montgomery County, Ohio (“Court”) adopts the following rules for the conduct, government, and management of business operations, court proceedings, and other functions and services of the Court.

B.      TITLE:

These rules shall be known as the Local Rules of Practice and Procedure for the General Division of the Montgomery County Common Pleas Court (“Rules”) and shall be cited as “Mont. Co. C.P.R. ____.”

C.      SCOPE:

These Rules shall supplement and complement the Ohio Rules of Civil Procedure (“Civ. R.”), the Ohio Rules of Criminal Procedure (“Crim. R.”), the Rules of Superintendence for the Courts of Ohio (“Sup. R.”), the Ohio Revised Code (“R.C.”) and any other applicable authority.

D.     CONSTRUCTION:

1.      These Rules shall be interpreted and applied so as to avoid inconsistency with other governing authority.

2.      These Rules shall be construed and applied to provide fairness and simplicity in procedure and to secure the just, expeditious and economical determination of all cases.

E.      EFFECTIVE DATE:

These Rules shall take effect on July 1, 1993.  They govern all proceedings in actions brought on or after July 1, 1993, and also all future proceedings in actions then pending, except to the extent that, in the opinion of the Court, their application in a particular action pending July 1, 1993, would not be feasible or would work an injustice, in which event the former procedure applies.

F.       AMENDMENT:

These Rules may be amended and supplemented as needed and required by law.  All amendments and rules shall be adopted as provided by Mont. Co. C.P.R. 1.03 of these Rules and shall govern all proceedings in actions brought after they take effect.  For actions pending when amendments take effect, the amended Rules shall apply unless such application, in a particular pending action, would not be feasible or would work injustice, in which event the former procedure applies.

Rule 1.03 – Procedure for Adopting, Modifying, and Repealing Local Rules

Amended 3/4/14; effective 3/21/14

Every Rule adopted pursuant to Sup. R. 5 shall be adopted, modified, or repealed by the following:

A.      PRESENTATION:  Every proposed rule, proposed modification of an existing rule (“proposed modification”), or proposal to repeal an existing rule (“proposed repeal”) shall be presented to the Court by:

1.      any Judge of the Court or

2.      any individual who sends a proposed rule, proposed modification, or proposed repeal to any Judge of the Court.

B.      INTRODUCTION AND CONSIDERATION:  Every proposed rule, proposed modification, or proposed repeal that has been presented to the Court pursuant to Subsection (A)(1) or (2) of this Rule shall be introduced to and considered by the Judges of the Court at their regular monthly meeting.

1.      During such meeting, the Judges may:

a.      reject the proposed rule, proposed modification, or proposed repeal; or

b.      approve or amend the proposed rule, proposed modification, or proposed repeal, so long as the resulting rule adoption, modification or repeal:

i.        promotes the use of any device or procedure to facilitate the expeditious disposition of cases and

ii.      is consistent with the rules promulgated by the Supreme Court of Ohio.

2.      Vote Formula:

a.      A simple majority of the elected and appointed Judges of the Court shall be required to adopt a proposed rule, proposed modification, or proposed repeal as provided herein.

b.      In case of an emergency, as determined by a three-fourths majority of the Judges of the Court (“Emergency Status”), any rule:

i.        may be adopted, modified, or repealed by a three-fourths majority of Judges of the Court;

ii.      shall take effect as directed by a three-fourths majority of Judges of the Court; and

iii.    shall be filed in accordance with Sup. R. 5.

C.      PUBLICATION:  All proposed rules, proposed modifications, or proposed repeals that have been presented, introduced, considered and approved in accordance with this Rule shall be published for 60 days.  During the 60 day publication period, members of the local bar may respond to the proposed rule, proposed modification, or proposed repeal by submitting comments to the Court.

D.     ADOPTION OR RE-PUBLICATION:

1.      Adoption:  If members of the local bar fail to comment on the proposed rule, proposed modification, or proposed repeal, or if the comments submitted by members of the local bar during the 60 day publication period were given reasonable consideration by the Judges of the Court at their regular monthly meeting and such Judges decide, at the end of the 60 day publication period, to leave the proposal unamended, then every proposed rule, proposed modification, and proposed repeal that has been presented, introduced, considered, approved, and published shall then take effect.

2.      Re-publication:

a.      Proposed Rule or Proposed Modification:

i.        If the Judges of the Court, at their regular monthly meeting, in response to comments submitted by members of the local bar, amend the proposed rule or proposed modification, then the proposed rule or proposed modification, as amended, shall be re-published for 30 days.

ii.      If members of the local bar fail to comment on the proposed rule or proposed modification, as amended, or if the comments submitted by members of the local bar during the 30 day re-publication period were given reasonable consideration by the Judges of the Court at their regular monthly meeting and such Judges decide, at the end of the 30 day re-publication period, to leave the proposal unamended, then every proposed rule and proposed modification that has been presented, introduced, considered, approved, amended, and re-published shall then take effect.

b.      Proposed Repeal:

i.        If the Judges of the Court, at their regular monthly meeting, in response to comments submitted by members of the local bar, reject the proposed repeal in favor of retaining the existing rule or modifying the existing rule, then the existing rule or proposed modification shall be re-published for 30 days.

ii.      If a proposed repeal is rejected in favor of retaining the existing rule or modifying the existing rule pursuant to this Rule, and, if members of the local bar fail to comment on the proposed rule or proposed modification, or if the comments submitted by members of the local bar during the 30 day re-publication period were given reasonable consideration by the Judges of the Court at their regular monthly meeting and such Judges decide, at the end of the 30 day re-publication period, to adopt the existing rule or proposed modification, then the existing rule or proposed modification that has been presented, introduced, considered, approved, amended, and re-published shall then take effect.

E.      FILING:

1.      New Rule or Modification of an Existing Rule:  Every proposed rule that has been adopted and every existing rule that has been modified or amended in accordance with this Rule shall be filed with the Clerk of the Montgomery County Common Pleas Court (“Clerk”) and the Clerk of the Supreme Court of Ohio.

2.      Repeal of Existing Rule:  Notice of every existing rule that is repealed in accordance with this Rule shall be filed with the Clerk and the Clerk of the Supreme Court of Ohio.

Rule 1.05 – Terms of Court

Amended 3/4/14; effective 3/21/14

The Court is in continuous session for the transaction of judicial business.  The calendar year is divided into three terms of court, commencing on the first day of January, May and September.  All causes and proceedings, civil and criminal, and other matters pending on the last day of a term are continued to the next term without further order of the Court.

Rules 1.07 – Sessions of the Court

Amended 3/4/14; effective 3/21/14

A.      Unless otherwise ordered by the trial Judge, trial sessions shall be scheduled to start between the hours of 8:30 a.m. and 4:30 p.m.

B.      Unless otherwise ordered by the trial Judge, trial sessions shall not be scheduled on the following occasions:

1.      Days that by law or proclamation of the President of the United States or the Governor of this state are designated national or state holidays; and

2.      Days when the weather or other cause requires the Court to be closed as determined by the Administrative Judge.

C.      “Court Day” means Monday through Friday, excluding the days set forth in Subsection (B)(1) of this Rule.

Rule 1.09 – Divisions of the Court

Amended 3/4/14; effective 3/21/14

The Court of Common Pleas of Montgomery County, Ohio, consists of four divisions:  the General Division (“Court” as defined by Mont. Co. C.P.R. 1.01 (A)(1)), the Domestic Relations Division, the Probate Division, and the Juvenile Division.  The Judges elected and appointed to each division shall be responsible for the business and administration of their respective division and may adopt rules for their respective division.

Rule 1.11 – Facilities

Amended 3/4/14; effective 3/21/14

Passageways behind the courtrooms, related facilities and the service elevator will be used by jurors, grand jurors, and employees of the Court.  Attorneys and others may use such facilities only upon obtaining permission from a Judge or a member of the Judge’s staff.

Rule 1.12 – Court Security

Adopted 6/19/95; Effective 7/1/95

Amended 3/4/14; effective 3/21/14

A.      COURT SECURITY ADVISORY COMMITTEE:

The Court shall appoint a Court Security Advisory Committee to implement the Ohio Court Security Standards promulgated by the Supreme Court of Ohio.  The Committee shall be comprised of representatives of each division of the Court of Common Pleas of Montgomery County, Ohio; the Sheriff of Montgomery County; members of the board of County Commissioners or their designees; the bar; and other related groups.  The Committee shall work with and assist other courts’ Security Advisory Committees.

B.      SECURITY POLICY AND PROCEDURE MANUAL:

The Court shall adopt, pursuant to this Rule, a Security Policy and Procedures Manual to ensure consistent, appropriate and adequate security procedures.  The manual shall include a physical security plan, routine security operations, a high risk trial plan, and emergency procedures (fire, bomb, disaster, hostage, etc.).  A copy of this manual shall be made available to all persons assigned to the Court so as to ensure understanding and compliance.

Rule 1.13 – Court Administrator

Amended 3/4/14; effective 3/21/14

The Court may appoint an administrator who will function as the chief non-judicial officer of the Court and will provide general supervision of Criminal Justice Services (Probation Services), Court Services (Jury, Caseflow and Pretrial Services), and Court Administrative Services to include, but not limited to, computer, budgetary, and human resource services.

In addition, the Court Administrator will implement the administrative policy decisions of the Court and perform such other duties that may be assigned by the Court.

Rule 1.15 – Filing of Court Documents and Removal of Papers from Custody of the Clerk

Amended 8/7/07; effective 8/13/07

Amended 5/3/11; effective 8/8/11

Amended 3/4/14; effective 3/21/14

Except as otherwise provided in Subsection (J) of this Rule, all civil and criminal cases, including all pleadings, motions, briefs, memoranda of law, deposition transcripts, transcripts of proceedings, orders or other documents, shall be filed electronically through the Court’s authorized electronic filing system (“eFile system”).  Paper courtesy copies of documents filed electronically shall not be delivered to the Court.  The Court’s authorized eFile system is hereby appointed the agent of the Clerk for the purpose of filing, receipt, service and retrieval of electronic documents.

A.      DEFINITION OF TERMS:  The following terms in this Rule shall be defined as follows:

1.      Document:  A filing made with the Clerk in either electronic format or paper form, becoming the Court’s official record.

2.      Electronic Filing (“eFile”):  The electronic transmission, acceptance, and processing of a filing.  A submission consists of data, one or more documents, and images.  This definition of eFile does not apply to facsimile or email.

3.      Court Initiated Filings:  Official Court documents entered into the docket or register of actions, such as notices or orders.  The term “Court initiated filings” is a simplification to indicate that documents will be submitted as part of the electronic court record, but could be submitted using exactly the same process as external filings if the Court so desires.

4.      Electronic Service (“eService”):  The electronic transmission of an original document to all case participants who are registered users of the Court’s eFile system via the eFile system.  Upon the completion of any transmission to the eFile system, an electronic receipt shall be issued to the sender acknowledging receipt by the eFile system.

5.      Case Management System (“CMS”):  The Court CMS manages the receipt, processing, storage and retrieval of data associated with a case and performs actions on the data.

6.      Document Management System (“DMS”):  A DMS manages the receipt, indexing, storage and retrieval of electronic and non-electronic documents associated with a case.

7.      Court Electronic Record:  Any document that the Court receives in electronic form, records in the CMS and stores in its DMS.  This includes Court initiated filings as well as pleadings, other documents and attachments created by parties or their counsel.  It does not include physical exhibits brought into the courtroom for the Court or jury’s edification that cannot be captured in electronic form.

8.      Clerk Review:  A review of Documents by the Clerk in accordance with Court rules, policies, procedures, and practice.  The Clerk may review the data and documents electronically submitted to ensure compliance with Court rules, policies, procedures and practices before creating a docket entry or before docketing the case.

9.      System Error:  When the Court’s eFile system is not operational.

10.  Public Access Terminal:  A terminal located in the Clerk’s office for use by the public during regular business hours.  Users shall be charged for printed copies of documents at rates permitted by law.

B.      SERVICE OF COURT INITIATED FILINGS:  

Subject to the provisions of this Rule, the Court shall eFile all Court Initiated Filings.  Service of Court Initiated Filings shall be made via eService.

C.      REGISTRATION IN eFILE SYSTEM:

1.      All counsel of record shall register with the Court’s eFile system to file, serve, receive, review, and retrieve copies of eFiled pleadings, orders and other documents in the case.  Pro se parties may, but are not required to, register with the Court’s eFile system.

2.      The Court shall not accept or file any pleadings or instruments in paper form except as provided in Subsection (J) of this Rule.

3.      If a party or counsel of record does not have internet access, the party or counsel of record may use the Clerk’s Public Access Terminal to register to use the Court’s eFile system and to eFile documents.

D.     CONFIDENTIAL AND UNIQUE ELECTRONIC IDENTIFIER:

1.      The Court’s eFile system shall assign an individual who has registered pursuant to Subsection (C) of this Rule a confidential and unique electronic identifier that shall be used to file, serve, receive, review, and retrieve eFiled pleadings, orders, and other documents in the case.

2.      Each person to whom a unique identifier has been assigned shall be responsible for the security and use of such identifier.

3.      All eFiled documents shall be deemed to be made with the authorization of the party who is assigned the specific unique electronic identifier, unless the party proves to the satisfaction of the Court, by clear and convincing evidence, that the contrary is demonstrated.

E.      OFFICIAL COURT RECORD:  For documents that have been eFiled pursuant to Subsection (G) of this Rule or documents filed in paper format pursuant to Subsection (J) of this Rule that have been scanned and uploaded to the eFile system by the Clerk, the electronic version constitutes the Official Court Record.  eFiled Documents have the same force and effect as those filed by traditional means.

F.       FORM OF DOCUMENTS:

1.      Format:  All pleadings, motions, briefs, and other documents shall be formatted in accordance with the following:

a.      Typewritten or printed, double spaced, on 8 ½” x 11” paper, not less than 11-point and not greater than 12-point regular type font, paginated sequentially.

b.      Filings prepared in a pleading format shall reserve a blank space of at least 2 ½ inches at the top of the first page for endorsements and shall have appropriate side and bottom margins of not less than one inch.

c.       Forms prescribed and approved by the Court shall reserve an adequate space in the top right-hand corner for endorsements or file stamps and shall have appropriate side and bottom margins proportional with the format of the form or document.

d.      A filed document shall not contain links to other documents or references to the CMS, unless they are incorporated into the filed documents.  External links are prohibited.

2.      Portable Document Format (“.pdf”):

a.      Except as provided in Subsection (F)(2)(b) of this Rule, all eFiled documents, pleadings, and papers shall be filed with the Clerk in .pdf.

b.      A proposed order or proposed entry shall be submitted in Word [.doc] or WordPerfect [.wpd] format and reference the specific motion to which it applies.

3.      Size of eFiled Documents:

a.      Individual documents included in a submission shall not exceed 10 megabytes in size.

b.      Any combination of documents eFiled in one submission shall not exceed 30 megabytes in size.

4.      Signatures:

a.      Attorney/Filing Party Signature:  eFiled documents that require the signature of the attorney or filing party shall be signed with a conformed signature of “/s/ [name].”  The correct format for an attorney’s conformed signature is as follows:

/s/Attorney Name

Attorney Name

Bar Number 1234567

Attorney for [Plaintiff/Defendant] XYZ Corporation

ABC Law Firm

Address

Telephone

Fax and/or E-mail address

b.      The conformed signature on an eFiled document is deemed to constitute a signature on the document for the purposes of signature requirements imposed by the Ohio Rules of Superintendence, Rules of Civil Procedure, Rules of Criminal Procedure and any other law.

c.       Multiple Signatures:  When a stipulation or other document requires two or more signatures, the filer shall:

i.        confirm that the content of the document is acceptable to all persons required to sign the document;

ii.      indicate the agreement of other counsel or parties at the appropriate place in the document, usually on the signature line; and

iii.    eFile the document, indicating the signatories, e.g., /s/ Jane Doe, /s/ John Smith, etc.

d.      Original Signatures:  Documents requiring an original signature, such as an affidavit or other notarized documents shall be eFiled as a .pdf.

i.        The filer shall maintain the signed document in the filer’s records and have it available for production upon request of the Court.

ii.      The signed document shall be maintained until the case is closed and the time for appeal has expired or the appeals have been heard or denied and all opportunities for post judgment relief are exhausted.

e.      Signature of Judge or Judicial Officer:  eFiled documents may be signed by a Judge or judicial officer via a digitized image of his or her signature combined with a digital signature.  All orders, decrees, judgments and other documents signed in this manner shall have the same force and effect as if the Judge had affixed his or her signature to a paper copy of the order and journalized it.

G.     TIME, EFFECT AND PROCESS OF eFILING:

1.      Submission:  Any filing may be eFiled with the Clerk 24 hours a day, 7 days a week.

2.      Receipt:  Upon receipt, the Court’s eFile system shall issue a confirmation that the submission has been received.  The confirmation shall include the date and time of receipt and serve as proof of receipt.

3.      Clerk Review:  After Clerk Review, a filer will receive notification from the Clerk that the submission has been accepted or rejected by the Clerk.

a.      If the submission is rejected, the document shall not become part of the Court record and the filer shall be required to re-submit the document to meet the requirements.  The re-submitted document shall receive a new submission date and time.

b.      If the submission is accepted, the document shall be docketed and filed.

4.      Official Time Stamp:  Upon acceptance, the submission shall be deemed filed and shall receive an electronic stamp that includes the date and time that the filer submitted the document to the Court’s eFile system as well as the unique confirmation number of the filing.

5.      System Errors:  If a submission is not received by the Court because of a System Error, the Court may, upon satisfactory proof, enter an order permitting the document to be filed nunc pro tunc to the date it was submitted.

H.     SERVICE:

1.      Instructions for Service:  For all documents that require service by the Clerk or documents for which a party is requesting that service be made by the Clerk, Instructions for Service shall be filed as a separate document.  The Clerk shall not accept Instructions for Service that do not designate the names and addresses of the parties to be served.  If the address of the party to be served is unknown, the filer shall substitute “unknown” for the address.

2.      Complaint and Related Documents in Civil Cases:

a.      Upon filing the original complaint or any counterclaim, crossclaim, or third party complaint, in addition to the Instructions for Service required by Subsection (H)(1) of this Rule, the filer shall include the address of the plaintiff(s) and defendant(s) in the caption of the document.  If the address of any plaintiff or defendant is unknown, the filer shall substitute “unknown” for the address in the caption.

b.      Unless an attorney or party has obtained permission signed by the assigned Judge to defer service of summons for a specific period of time, the Instructions for Service filed with the original complaint or any counterclaim, crossclaim or third party complaint shall indicate a method of service pursuant to Civ. R. 4.

c.       The Clerk shall issue a summons and process the method of service in accordance with the Ohio Rules of Civil Procedure.

3.      Indictments in Criminal Cases:  Indictments in criminal cases shall be filed through the Court’s eFile system in compliance with these Rules and shall be served on defendants according to the Ohio Rules of Criminal Procedure.

4.      Documents Filed Subsequent to Complaint or Indictment:

a.      In accordance with Civ. R. 5 and Crim. R. 49, unless the filer requests service by the Clerk and files the Instructions for Service required by Subsection (H)(1) of this Rule, the filer, not the Clerk, shall be responsible for serving all documents filed subsequent to the original complaint on all parties or their attorneys.

i.        When a submission is deemed filed pursuant to Subsection (G) of this Rule, the eFile system shall generate a Notification of Electronic Filing to the filer and any other party who is a registered user of the eFile system.  The Notification of Electronic Filing shall constitute service under Civ. R. 5 and Crim. R. 49.

ii.      eService of documents subsequent to the complaint or indictment shall be considered valid and effective service and shall have the same legal effect as an original paper document.

iii.    The filer shall serve a paper copy of the document on all pro se parties who are not registered users of the Court’s eFile system in accordance with Civ. R. 5 and Crim. R. 49.

b.      Entries and Orders:

i.        The Court’s eFile system shall generate a Notification of Electronic Filing for all entries and orders signed by the Judge.  This Notification of Electronic Filing shall constitute service under Civ. R. 5 and Crim. R. 49.

ii.      After the order or entry has been signed and filed, the filer, not the Court or Clerk, shall serve on all pro se parties who are not registered users of the Court’s eFile system copies of all entries and orders submitted to the Court for signature in accordance with Civ. R. 5 and Crim. R. 49.

c.       Certificate of Service:

i.        Proof of service of all documents required or permitted to be served shall be made in compliance with Civ. R. 5(B)(3) and Crim. R. 49(C).

ii.      The Certificate of Service shall be signed in accordance with applicable Ohio court rules and laws, including these Rules, and shall contain the following language for each party entitled to service:

 

“I hereby certify that on [date] this document was eFiled via the Court’s eFile system which shall send notifications of this filing to the following:  [list parties or their counsel who are registered users of the Court’s eFile system].

 

I hereby certify that on [date] I served this document in accordance with [Civ. R. 5 or Crim. R. 49] on the following:  [list pro se parties who are not registered users of the Court’s eFile system].”

5.      Service Date and Time to Respond or Act:

a.      For pro se parties who are registered users of the Court’s eFile system and counsel of record, service shall be deemed complete at the time the Notification of Electronic Filing is generated by the Court’s eFile system.  Documents served after 5:00 p.m. local time shall be deemed served on the next day.

b.      The time to respond to the served documents or perform any right, duty, or act shall be strictly governed by the applicable Rules of the Court.  Pro se parties who are not registered users of the Court’s eFile system and who are served by regular U.S. mail shall receive a three day extension of time to respond or perform any right, duty, or act.  Parties and counsel of record served via eService are not entitled to the three day extension.

6.       Failure of eService:  If the eFile system fails to generate the Notice of Electronic Filing, the party to be served may be entitled to an order extending the date for any response or the period within which any right, duty or act must be performed.

I.        PERSONAL AND PRIVATE INFORMATION IN DOCUMENTS FILED WITH THE CLERK:

1.      Definition:  Personal and private information includes, but is not limited to, social security numbers, financial account numbers, names of minors, information protected by law from public disclosure, and driver’s license or other personal identification numbers.

2.      Exclusion:  The filer shall not include personal and private information in any document filed with the Court unless such inclusion is necessary and relevant to the case.  This requirement extends to and includes exhibits or addenda attached to filings, such as preliminary and financial reports which itemize state liens that use social security numbers as case numbers or medical records.

3.      Redaction:  If personal and private information is necessary and must be included in a document, the filer shall redact the personal and private information from the document in the following manner:

a.      For social security numbers, financial account numbers, and drivers’ license or other personal identification numbers, all but the last four digits of the number shall be redacted.

b.      For minors, only the child’s initials shall be included.

c.       For any other personal or private information, the information shall be replaced with “[REDACTED]”.

4.      Responsible Party:  The filer is responsible for redacting personal and private information.  The Clerk shall not review each document for compliance with this Rule; however, the Clerk may refuse to accept any document that contains personal and private information that has not been redacted or submitted in accordance with this Rule.

5.      Entries and Orders:  Personal and private information required to be included in entries and orders shall be redacted in the manner set forth in Subsection (I)(3) of this Rule.  In the event that the redacted information is insufficient for an entry or order, the entries and orders, including the unredacted personal and private information, shall be filed in accordance with Mont. Co. C.P.R. 1.41.

J.        EXCEPTIONS TO eFILING:

1.      Documents filed under seal or in camera shall be filed in accordance with Mont. Co. C.P.R. 1.41.

2.      Exhibits, attachments, or other documents that may not be comprehensibly viewed in a .pdf shall be filed in their physical form with the Clerk.

3.      All documents related to Certificates of Judgments and Executions of Judgment shall be filed in paper form with the Clerk in accordance with Subsection (J)(4) of this Rule.

4.      Pro se parties who are not registered users of the Court’s eFile system may file documents in paper form with the Clerk in person, by U.S. Mail, by using the Clerk’s Public Access Terminal, or by facsimile (“fax”).

a.      Documents filed in accordance with this Rule shall be deemed filed and shall become the Court’s Official Court Record when they are entered by the Clerk in the Court’s eFile system.

b.      Fax Filing

i.        Filings in civil proceedings shall be sent to 937-496-7002.  Filings in criminal proceedings shall be sent to 937-496-7581.

ii.      Exceptions:  The following documents shall not be accepted for fax filing:

a)      original complaints;

b)      any document that requires a filing fee or deposit;

c)      any document that requires the Clerk to provide service;

d)      any document that requires a Judge’s signature or proposed entries attached to a motion;

e)      any document required to be certified or authenticated;

f)       liens;

g)      notary registrations;

h)      trial exhibits;

i)        evidentiary materials attached to motions that are not on 8 ½” x 11” paper;

j)        transcripts of depositions;

k)      orders in aid; or

l)        objections to the attachment of property other than personal earnings.

iii.    Cover Page:  Fax filings shall include a cover page containing the following information (See Appendix E1):

a)      The name of the Court, title of the case, case number, and assigned Judge.  If a Judge or case number has not been assigned, state that fact on the cover page;

b)      The type of document being filed;

c)      The date of the transmission and the number of pages in the transmission, including the cover page; and

d)      The name, address, telephone number, fax number and email address, if any, of the filer.

iv.     Length of Documents:  Fax filings, including attachments, shall not exceed 20 pages and must be faxed in a single transmission.  A single pleading may not be divided into multiple fax transmissions in order to satisfy the 20 page limit.

v.       Signature:  Fax filings shall be signed and maintained in accordance with Subsection (F)(4) of this Rule.

vi.     Exhibits

a)      Each exhibit to a fax filed document that, for any reason, cannot be accurately transmitted via fax must be replaced by an insert page describing the exhibit and why it is missing.  Unless the Court otherwise orders, the missing exhibit shall be filed with the Clerk, as a separate document, not later than five Court Days following the fax filing.  Failure to file any missing exhibits as required by this Subsection may result in the Court striking the document or exhibit.

b)      Any exhibit to a fax filed in accordance with Subsection (J)(4)(b)(vi)(a) of this Rule shall be attached to a cover sheet containing the caption of the case setting forth the name of the Court, title of the case, case number, and title of the exhibit being filed (e.g., Plaintiff Smith’s Notice of Filing Exhibit “G” to Plaintiff Smith’s Response to Defendant’s Motion to Dismiss); shall be signed and served in accordance with subsections (F)(4) and (H)(5) of this Rule; and will be separately docketed by the Clerk (see appendix E2).

vii.   Failed Faxes:  Any fax filing that fails to comply with this Rule or is incomplete shall be deemed a failed fax.  Failed faxes will be deposited in a file of failed fax documents with a notation explaining the reason for the failure.  A failed fax shall not be considered filed with the Clerk.

a)      The Clerk is not required to notify the sending party that the fax failed.  The risks of filing by fax to the Clerk shall be borne entirely by the sending party.  The burden of complying with this Rule and confirming receipt of a complete fax transmission is on the sending party.

b)      Failed fax documents will be retained by the Clerk for 90 days.

K.      COLLECTION OF FILING DEPOSIT AND FEES:  Any document requiring payment of a filing deposit or fee to the Clerk in order to achieve valid filing status shall be filed in the same manner as any other eFiled document.  The eFile system accepts payment of deposits and fees electronically.  Alternatively, the eFile system can accommodate the filing of an affidavit of indigency.

L.       REMOVAL:

1.      No person, except a Judge or Magistrate of the Court or an authorized Court employee, shall remove any documents or case files from the Clerk’s custody.

2.      Examination:  Upon request, during regular business hours, the Clerk shall allow any person to examine, but not remove, any original document or case file that is maintained by the Clerk.

3.      Transcripts of Testimony:  The inspection, examination, and duplication of transcripts of testimony shall be governed by Mont. Co. C.P.R. 1.29.

Rule 1.17 – The Appearance Docket

Amended 3/4/14; effective 3/21/14

The Clerk shall indicate on the appearance docket the name of the Judge to whom the case is assigned and the nature or purpose of all filings as indicated in the caption.

Rule 1.19 – The Assignment System

Amended 7/9/04; Effective 7/9/04

Amended 3/9/06; Effective 3/13/06

Amended 11/4/08; Effective 11/7/08

Amended 3/4/14; effective 3/21/14

The assignment system is the procedure adopted by the Court for the assignment of cases.  Pursuant to this system, each civil and criminal case shall be randomly assigned to a Judge (“assigned Judge”) who will be responsible for determining all matters in the case.  Random assignment is assignment of cases by chance.

A.      CIVIL DOCKETS:

1.      All civil cases shall be randomly assigned to the Judges of the Court.  Subject to Sup. R. 4(C), the Administrative Judge may be relieved from part of the Administrative Judge’s trial duties and utilize the time to manage the calendar and docket of the Court.

2.      Case assignments shall be made through the use of computer software and hardware systems that have been tested to ensure that case assignments are made in a random manner.

3.      Companion cases shall be assigned to the Judge whose name was drawn for the case filed first, if that Judge so approves.

4.      Withdrawal:  A Judge who withdraws from a case shall report this to the Court Services Division, Caseflow Services, via a request for disqualification.  The Administrative Judge shall reassign the case to another Judge pursuant to the Ohio Rules of Superintendence.

5.      Re-filed Cases:  In instances where a previously filed and dismissed case is re-filed, the case shall be reassigned to the originally assigned Judge unless, for good cause shown, the Judge is precluded from hearing the case.

6.      Consolidated Cases:  Pursuant to Civ. R. 42, parties to civil cases may move the Court to consolidate cases.  The motion shall be filed in each case for which consolidation is sought.  The decision of whether to consolidate cases into a single trial shall initially be decided by the assigned Judge with the lowest case number.

a.      If an entry is signed granting consolidation in the lowest case number, the party seeking consolidation shall then file a proposed entry in each additional case sought to be consolidated.

b.      If consolidation is ordered by the assigned Judge in each case, the consolidated cases will be placed on the docket of the assigned Judge with the lowest case number, unless otherwise ordered by the Administrative Judge.

c.       If cases are consolidated pursuant to this Rule, all subsequent filings shall identify all the case numbers in the caption and shall be entered on the docket for each case.

7.      When an assigned Judge is not available, arrangement may be made by that Judge or by the Administrative Judge for another member of the Court to handle urgent matters and sign entries. 

8.      All changes in assignments shall be noted in the records of the Clerk and Court Services division, Caseflow Services, pursuant to Subsection (C) and (D) of this rule.

B.      CRIMINAL DOCKETS:

1.      Grand Jury Judge:  Each term, one Judge will be assigned to supervise the Grand Jury (“Grand Jury Judge”).  The Grand Jury Judge shall preside over central arraignments.  The Grand Jury Judge shall handle criminal matters that may arise in individual cases prior to indictment and arraignment, including the setting of bonds.  The Grand Jury Judge shall handle extraditions and habeas corpus actions pertaining to extraditions.  The Grand Jury Judge and the assigned Judge may handle arraignments.  Pleas of guilty and no contest shall be handled by the assigned Judge.  The Judge assigned to the next Grand Jury term shall assist the Grand Jury Judge upon request.

2.      Assignment of Cases:

a.      Except as provided in Subsection (B)(2)(b) of this Rule, all criminal cases shall be randomly assigned to the Judges of the Court upon the approval of felony charges by the prosecuting attorney.  Each day, the Court Services Division, Caseflow Services, shall randomly assign pre-indictment cases.

b.      Exceptions:

i.        If the case does not involve multiple defendants and the defendant (1) is on community control that has not been terminated by entry or (2) has a prior indictment pending on active or inactive status in this county, the case shall be assigned to the Judge who placed the defendant on community control or on whose docket the prior indictment is pending.

ii.      If a case involves multiple defendants and any defendant (1) is on community control that has not been terminated by entry or (2) has a prior indictment pending on active or inactive status in this county, the lowest case number shall control the assignment.

iii.    If an adjustment in the method of assignment is made as a result of this Subsection, then the assigned Judge shall receive credit(s) for the additional assignment(s).

C.      THE CLERK SHALL:

1.      Record the name of the Judge to whom each civil or criminal case is assigned on the appearance docket;

2.      Record any subsequent change in assignment on the appearance docket and any other records; and

3.      Provide all assignments and adjustments in assignments to the entity designated by statute for publication.

D.     COURT SERVICES DIVISON, CASEFLOW SERVICES SHALL:

1.      Maintain a case record of each pending case that includes:

a.      A consecutive number;

b.      The name of the Judge to whom the case is assigned; and

c.       One of the following case types:  Administrative Appeal; Appropriation; Civil Action – Other; Civil Stalking Protection Order; Cognovit Note; Complex Litigation; Criminal; Declaratory Judgment; Disposal of Property; Forcible Entry; Foreclosure; Forfeiture of Property; Habeas Corpus; Injunction; Medical Malpractice; Other Tort (specify type); Personal Injury; Product Liability; Professional Tort; Replevin; Transfer from Other Court; Workers’ Compensation; or Writ of Mandamus.

2.      Record the date:

a.      The case was assigned;

b.      Of any pretrial conference;

c.       Notices were transmitted;

d.      Of trial;

e.      Of any continuance;

f.        Of the verdict or decision; and

g.      Of the final entry.

3.      Prepare reports required by Sup. R. 37;

4.      Prepare and approve separate reports for each Judge of the Court;

5.      Provide a monthly report on the status of each Judge’s docket to each Judge; and

6.      Identify cases that should be terminated and notify the appropriate Judges of the status of those cases.  After the Judges have been notified, the Court Services Division, Caseflow Services, shall submit final termination entries for approval to each assigned Judge for cases that are eligible for dismissal.

E.      TRANSFER OF ASSIGNED CASE TO ALTERNATE JUDGE: 

If a case is transferred from the assigned Judge to an alternate Judge, the alternate Judge shall hear all motions and proceedings pertaining to the case.

F.       ASSIGNMENT OF CASES TO NEWLY APPOINTED OR ELECTED JUDGES:

1.      A new member of the Court shall be assigned the cases previously assigned to the Judge whom the newly appointed or elected Judge succeeds.

2.      In the event an additional Judge is added to the Court, the additional Judge shall be assigned a proportionate share of the pending cases form the individual docket of the other members of the Court.

G.     FOREIGN EXECUTIONS AND OTHER ANCILLARY MATTERS:

When necessary to resolve any question arising on a foreign execution, certificate of judgment from another court or similar ancillary matter not otherwise assigned to a Judge under these Rules, counsel shall call the matter to the attention of the Administrative Judge.


 

Rule 1.21 – Bail or Surety

Amended 3/4/14; effective 3/21/14

No attorney, officer or employee of the Court, the Clerk, or the Sheriff’s Office shall be accepted as principal or as agent for bail or surety.  This Rule applies to any immediate family member of such attorney, officer or employee.

Rule 1.23 – Jury Management Plan

Amended 5/10/94; Effective 7/1/94

Amended 10/10/97; Effective 11/1/97

Amended 4/10/01; Effective 4/10/01

Amended 7/23/04; Effective 9/1/04

Amended 11/10/04; Effective 5/1/05

Amended 5/4/05; Effective 5/16/05

Amended 5/1/12; Effective 5/2/12

Amended 3/4/14; effective 3/21/14

A.      ADMINISTRATION OF THE JURY SYSTEM:

The responsibility for administration of the jury system shall be vested in the Court’s Jury Services Department under the supervision of the Court Administrator.

B.      RANDOM SELECTION PROCEDURES:

1.      Random selection procedures shall be used throughout the juror selection process.  Computers may be used to provide each eligible and available citizen with an equal probability of selection.

2.      Departures from the random selection procedures are appropriate only when, by reason of challenges or other causes, not enough jurors to make up a jury panel are present.  Talesmen then may be summoned for said panel until any deficiency is resolved.

C.      JURY SOURCE LIST:

The selection of jurors for the Court shall be from the list of electors certified by the Board of Elections pursuant to R.C. § 2313.06 and may include names from the list of qualified drivers’ licenses certified by the Register of Motor Vehicles pursuant to R.C. § 2316.06.  The Court shall designate a random selection process based on the total number of electors, qualified drivers’ licenses, and the number of jurors needed for a four month term of service.  A term jury list, using the random selection process, shall be drawn in August for the September term, December for the January term, and April for the May term.  The jurors’ current addresses shall be periodically updated by submitting the jury source list to a National Change of Address (NCOA) processing service.  The Montgomery County, Ohio Jury Commission shall certify the annual list and file it with the Clerk.

1.      To the extent feasible, the jury source list shall be representative of, and be as inclusive as possible of, the adult population of Montgomery County, Ohio.

2.      The Court shall annually review the jury source list for its representativeness and inclusiveness of the adult population of Montgomery County, Ohio.

3.      Should the Court determine that improvement is needed in the representativeness or inclusiveness of the jury source list, appropriate corrective action shall be taken.

4.      The annual jury year shall begin on September 1.

D.     ELIGIBILITY FOR JURY SERVICE:

All persons shall be eligible for jury service except those who:

1.      Are less than 18 years of age (except persons age 17 who are certified by the Board of Elections as eligible to vote);

2.      Are not citizens of the United States and residents of Montgomery County, Ohio; or

3.      Have been convicted of a felony, have not completed their jail time, probation, or community sanction, and have not had their civil rights restored.

E.      NOTIFICATION AND SUMMONING PROCEDURES:

1.      The summons calling a person to jury service and the questionnaire eliciting essential information regarding that person may be:

a.      Combined in a single document;

b.      Phrased so as to be readily understood by an individual unfamiliar with the legal and jury systems; and

c.       Mailed by first class mail not more than three weeks prior to appearance.

2.      The summons will clearly explain how and when the recipient must respond and the consequences of a failure to respond.

3.      The questionnaire will be phrased and organized so as to facilitate quick and accurate screening and will request only that information essential for:

a.      Determining whether a person meets the criteria for eligibility;

b.      Providing basic background information ordinarily sought during voir dire examinations; and

c.       Efficiently managing the jury system.

4.      Policies and procedures shall be established for monitoring failures to respond to a summons and for enforcing a summons to report for jury service.  Sanctions may be imposed as warranted.

F.       TERM OF AND AVAILABILITY FOR JURY SERVICE:

1.      Persons called upon to perform jury service shall be available for five days or longer, as deemed necessary due to the number of trials scheduled or the length of a trial.

2.      The jurors shall be provided with a local number to call to hear a recorded message that informs them of specific details of their jury service.


 

G.     EXCUSAL AND DEFERRAL:

1.      Except as provided by R.C. § 2313.15, the Court shall not excuse a person who is liable to serve as a juror and who is drawn and notified unless it is shown to the satisfaction of the assigned Judge by either the juror or another person acquainted with the facts that one or more of the following applies:

a.      The interests of the public will be materially injured by the juror’s attendance;

b.      The juror’s spouse or a near relative of the juror or the juror’s spouse has recently died or is dangerously ill;

c.       The juror has been called as a juror and has actually served as a juror for a trial in a court of record in any county of the state within the same jury year;

d.      The juror is a cloistered member of a religious organization;

e.      The juror has a mental or physical condition that causes the juror to be incapable of performing jury service.  Documentation may be required from a physician licensed to practice medicine verifying that a mental or physical condition renders the juror unfit for jury service for the remainder of the jury year;

f.        Jury service would cause undue or extreme physical or financial hardship to the juror or a person under the care or supervision of the juror;

g.      The juror is over 75 years of age and requests to be excused;

h.      The juror is an active member of a recognized Amish sect and requests to be excused because of the juror’s sincere belief that, as a result of that membership, the juror cannot pass judgment in a judicial matter; or

i.        The juror is on active military duty.

2.      A person who is liable to serve as a juror may be excused only by the assigned Judge or a representative of the assigned Judge.  After one year, a person excused from jury service shall become eligible once again for qualification as a juror unless the person was excused from service permanently.  A person is excused from jury service permanently only when the deciding Judge determines that the underlying grounds for being excused are of a permanent nature.

3.      Deferrals for jury service up to six months may be permitted by the assigned Judge or a representative of the assigned Judge if the juror has not previously been granted a postponement.  If extraordinary circumstances exist, a deferral for more than six months may be granted.

4.      An automatic deferral must be granted to a prospective juror if his or her employer has 25 or fewer employees and another employee of that business has been summoned during the same term.

5.      Requests for excusals and deferrals and their disposition shall be written or otherwise recorded.


 

H.     JURY FACITILIES:

1.      The Court shall provide an adequate and suitable environment for jurors and comply with all American with Disabilities Act regulations.

2.      Facilities shall be easily identified and appropriately designed to accommodate the daily flow of prospective jurors to the courthouse.

3.      Jury deliberation rooms shall include space, furnishings, and facilities conducive to reaching a fair verdict.  The safety and security of the deliberation rooms shall be ensured.

4.      To the extent feasible, juror facilities will be arranged to minimize contact of jurors with parties, counsel, and the public.

5.      Jurors shall comply with all building regulations, including, but not limited to, security and the no smoking policy.

I.        VOIR DIRE:

1.      Voir dire examination shall be limited to matters relevant to determining whether to remove a juror for cause and the juror’s fairness and impartiality.

2.      To reduce the time required for voir dire, basic background information of the prospective jurors shall be made available to counsel for each party prior to trial.

3.      The trial Judge may conduct a preliminary voir dire examination.  Counsel shall then be permitted to question panel members for a reasonable period of time.

4.      The trial Judge shall ensure that the privacy of prospective jurors is reasonably protected and the questioning is consistent with the purpose of the voir dire process.

5.      In all criminal and civil cases, the voir dire process shall be held on the record.

6.      Voir dire questions shall be asked collectively of the entire panel whenever possible.

J.        REMOVAL FROM THE JURY PANEL FOR CAUSE:

If the Judge determines that a prospective juror is unable or unwilling to judge the particular case fairly and impartially, that prospective juror shall be excused.

K.      JUROR ORIENTATION AND INSTRUCTION:

1.      The Court shall have a juror orientation program designed to increase prospective jurors’ understanding of the judicial system and prepare them to serve competently as jurors.  It shall be presented in a uniform and efficient manner using a combination of written, oral and audiovisual materials.

2.      The trial Judge may:

a.      Give preliminary instructions to all prospective jurors;

b.      Give instructions directly following empanelment of the jury to explain the jury’s role and trial procedures;

c.       Prior to the commencement of deliberations, instruct the jury on the law, the appropriate procedures to be followed during deliberations, and the appropriate method for reporting the results of its deliberations;

d.      Make the Court’s instructions available in the jury room during deliberations in a form which is readily understandable by individuals unfamiliar with the legal system; and

e.      Advise jurors before dismissing the jury at the conclusion of a case concerning:

i.        Release of the jurors from their duty of confidentiality;

ii.      Their rights regarding inquiries from counsel or the press;

iii.    Whether they are discharged from service or specify where they must report; and

iv.     The Court’s appreciation to the jurors for their service, but without approval or disapproval of the result of the deliberation;

3.      All communications between the Judge and members of the jury panel, from the time of reporting to the courtroom for voir dire through discharge shall be in writing or on the record in open court.  Counsel for each party shall be informed immediately of such communications and given the opportunity to be heard.

L.       JURY DELIBERATIONS:

1.      In conjunction with Subsection (H) of this Rule, jury deliberations shall take place under conditions that are designed to ensure impartiality and to enhance rational decision-making and shall conform to existing Ohio law.

2.      A jury shall not be required to deliberate after a reasonable hour unless the assigned Judge determines that evening, weekend or holiday deliberations would not impose an undue hardship upon the jurors and is required in the interests of justice.

3.      Training shall be provided to personnel who escort and assist jurors during deliberations.

M.   SEQUESTERING OF JURORS:

1.      A jury shall be sequestered only for good cause, including, but not limited to, insulating its members from improper information or influences.

2.      The jury shall be sequestered after a capital case is submitted to the jury in conformity with existing Ohio law.

3.      The assigned Judge shall have the discretion to sequester a jury on the motion of counsel or on the Judge’s own motion and shall have the responsibility to oversee the conditions of sequestration. 

4.      Procedures shall be promulgated to:

a.      Achieve the purpose of sequestration and

b.      Minimize the inconvenience and discomfort of sequestered jurors.

5.      Training shall be provided to personnel who escort and assist jurors during sequestration.

 

N.     MONITORING THE JURY STSTEM:

The Court shall collect and analyze information regarding the performance of the jury system annually in order to evaluate:

1.      The representativeness and inclusiveness of the jury source list;

2.      The effectiveness of summoning and qualification procedures;

3.      The responsiveness of individual citizens to jury duty summonses;

4.      The efficient use of jurors; and

5.      The cost-effectiveness of the jury management system.

Rule 1.25 – Recording of Court Proceedings

Amended 10/10/97; Effective 11/17/97

Amended 11/14/02; Effective 11/15/02

Amended 3/4/14; effective 3/21/14

A.      DEFINITIONS:

For purposes of this Rule, the term “proceeding” shall apply to any public hearing held by the Court and the term “record” shall include broadcasting, televising, recording, or photographing.

B.      APPLICATION:

This Rule shall be applied in conjunction with Sup. R. 12 and shall govern the recording of proceedings and the recording of interviews of attorneys, witnesses, and all other persons that may be involved in a proceeding.

C.      AUTHORIZATION:

The Court may grant requests to record proceedings that are made in accordance with the following:

1.      Authorization for Central Arraignments:

a.      All requests to record central arraignments shall be made:

i.        in writing to the Grand Jury Judge and

ii.      on the appropriate form available through the Bailiff of the Grand Jury Judge (Appendix A through Appendix D).

b.      In the event the Grand Jury Judge decides to approve the request, the Grand Jury Judge shall sign a journal entry setting forth the conditions of recording.  This entry shall be made part of the record of the case.

c.       The Grand Jury Judge may, on his or her own motion, issue a general order permitting the recording of all central arraignments on a continual basis.

2.      Authorization for All Other Proceedings:

a.      All requests to conduct an interview in the courthouse and requests to record proceedings other than central arraignments shall be made:

i.        in writing to the assigned Judge;

ii.      on the appropriate form available through the Bailiff of the assigned Judge (Appendix A through Appendix D); and

iii.    as far in advance as is reasonably possible, but no later than 24 hours prior to the proceeding to be recorded.  Upon showing of good cause the Judge may waive the advance notice provision.

b.      In the event the assigned Judge decides to approve the request, the assigned Judge shall sign a journal entry setting forth the conditions of recording.  This entry shall be made part of the record of the case.

c.       No interviews shall occur anywhere in the Courthouse other than inside the courtroom unless otherwise permitted by the assigned Judge.

3.      Limitations for Recording a Proceeding:

a.      No recording of proceedings or interviews and no recording equipment shall be allowed anywhere in the courthouse in the absence of a written request and authorization.

b.      In the event that a proceeding that has been recorded is continued for a period in excess of 30 days, a new request shall be made in accordance with the procedures set forth in Subsection (C)(2) of this Rule.

c.       No recording shall be made:

i.        of proceedings in the Judge’s chambers without the express permission of the Judge;

ii.      in jury deliberation rooms at any time during the course of the trial or after the case has been submitted to the jury;

iii.    of victims or witnesses who object to being recorded; or

iv.     of jurors.

d.      Permission granted for recording shall not be interpreted to diminish:

i.        the requirement that jurors are forbidden to discuss the case with any person until after the trial is completed; and

ii.      the ethical requirements that restrict judges and lawyers from releasing information pertaining to a case while the case is pending.

e.      The trial shall proceed in exactly the same manner as though there were no recording in process.

f.        Any equipment which is non-portable shall be set up and ready for operation prior to the commencement of morning or afternoon court sessions.  No person shall be permitted to bring equipment into the courtroom while trial is in session unless such equipment can be easily carried by a single person without causing a distraction or a disturbance in the courtroom.

g.      “Pooling” of equipment shall be required in all proceedings, unless abrogated by the assigned Judge.  It is the responsibility of those requesting permission to record the proceedings to arrange for “pooling” of equipment.

D.     SANCTIONS:

1.      Upon the failure of any person to comply with the requirements of the assigned Judge or these Rules, the assigned Judge may revoke the authorization to record the proceeding.

2.      If a recording of any proceeding is conducted without completing a request and obtaining authorization, the Bailiff or any Deputy Sheriff may impound the recording equipment and the Court may hold the equipment subject to future actions.  Upon such impoundments, the Court shall schedule an appropriate hearing at the earliest possible time.  This provision does not apply to employees of the Court relating to the use of official recording devices or to recording devices used pursuant to the Rules of Superintendence for the Courts of Ohio.

Rule 1.27 – Deposition Testimony

Amended 1/10/96; Effective 2/15/96

Amended 11/4/08; Effective 11/7/08

Amended 8/3/10; Effective 8/9/10

Amended 11/1/11; Effective 1/9/12

Amended 3/4/14; effective 3/21/14

A.      FILING OF WRITTEN DEPOSITION TRANSCRIPT:

1.      In addition to the requirements set forth in Civ. R. 30 - 32 and Sup. R. 13, unless otherwise ordered by the Court, written deposition transcripts shall be filed prior to the deadline for filing the pretrial statement(s) or seven days prior to trial, whichever is earlier.

2.      Except as otherwise provided in Mont. Co. C.P.R. 1.15(J), all written deposition transcripts, including attachments and exhibits, shall be filed by the attorney of record through the Court’s eFile system in accordance with Mont. Co. C.P.R. 1.15.  Pursuant to Mont. Co. C.P.R. 1.15(I) and Sup. R. 45(D), the attorney of record shall omit or redact all personal and private information from the written deposition transcripts prior to filing.

3.      The Clerk shall not accept any written deposition transcript unless it is accompanied by a Notice of Filing Deposition Transcript and Certification of Compliance.

a.      The Notice of Filing Deposition Transcript shall identify the deponent and the date the deposition was taken and include a certification by the officer who took the deposition that the written deposition transcript being filed is a true record of the deposition and that the testimony has not been altered in any way.

b.      The Certification of Compliance shall include a certification from counsel that the written deposition transcript is being filed in compliance with this Rule and Mont. Co. C.P.R. 2.09(IV).

B.      USE OF AUDIO/VIDEO VERSION OF DEPOSITION AT TRIAL OR HEARING:

1.      If an audio/video version of a deposition is to be presented during trial or a hearing, the attorney or pro se party presenting the audio/video version of the deposition shall submit the audio/video version of the deposition to the Court, not the Clerk, five Court Days prior to the trial or hearing, unless otherwise ordered by the Court.  Additionally, the attorney or pro se party presenting the audio/video version of the deposition shall:

a.      notify the Bailiff of the intended use within three Court Days prior to the trial or hearing;

b.      ensure that the format of the audio/video version of the deposition is compatible with the Court’s video equipment; and

c.       be able to operate the Court’s video equipment.

2.      The Court shall not accept or permit the audio/video version of the deposition transcript to be presented during trial or hearing unless a written transcript of the deposition has been filed in accordance with Subsection (A) of this Rule.

3.      The audio/video version of the deposition transcript shall include an attached written certification from the officer who took the audio/video deposition.  The certification shall state that the witness was fully sworn or affirmed by the officer and that the audio/video version of the deposition is a true record of the testimony given by the witness.  The officer’s log of the deposition shall be included with the certification.

4.      If the audio/video version of the deposition is presented at trial or a hearing and the proceedings are digitally recorded by a Judicial Assistant, the audio/video version of the deposition will be returned to the attorney upon completion of the proceedings.  The audio/video version of the deposition shall be destroyed after 30 days if not retrieved upon completion of the proceedings.

5.      If the proceedings are recorded by a Court Reporter, the audio/video version of the deposition shall be marked as an exhibit of the party who presented the deposition and shall be retained as evidence from the trial or hearing.

Rule 1.29 – Requests for Preparation of Transcripts or Videos of Proceedings

Amended 11/4/08; Effective 11/7/08

Amended 3/4/14; effective 3/21/14

A.      REQUESTS FOR PREPARATION OF TRANSCRIPTS:

Any request for transcripts shall be made in accordance with the following procedures:

1.      Proceedings Recorded by a Judicial Assistant (“JA”):

a.      Appeals

i.        Indigent Defendants with appointed Counsel or Pro se

a)      File a praecipe with the Clerk.

b)      Serve a time-stamped copy of the praecipe, with a Request for Video of Proceeding or Request for Paper Transcript (“Request Form”, Appendix F) attached, on the JA for the assigned Judge in person or by e-mail, fax, or regular mail.  The Request Form must indicate the specific dates of the proceeding(s) to be transcribed.

c)      When completed, the JA shall send the transcript to appellate counsel in .pdf format via e-mail and shall file an electronic copy of the transcript with the Clerk of the Second District Court of Appeals.

ii.      Non-indigent Defendants with Retained Counsel or Pro Se

a)      File a praecipe with the Clerk.

b)      Serve a time-stamped copy of the praecipe, with the Request Form attached, on the JA for the assigned Judge in person or by e-mail, fax, or regular mail.  The Request Form must indicate the specific dates of the proceeding(s) to be transcribed.

c)      The JA shall submit the video of the proceeding(s) to the Court’s transcription provider.  Thereafter, appellate counsel is responsible for obtaining the transcript from the Court’s transcription provider.

d)      When completed, the JA shall file an electronic copy of the transcript with the Clerk of the Second District Court of Appeals.

b.      Non-Appeal Requests

i.        Indigent Defendants with Appointed Counsel or Pro Se

a)      File a Motion and proposed Order with the Court.

b)      If the Judge grants the Motion and signs the Order, serve a time-stamped copy of the Order, with the Request Form attached, including the specific dates of the proceeding(s) to be transcribed, on the JA for the assigned Judge in person or by e-mail, fax, or regular mail.

c)      When completed, the JA shall send the transcript to counsel in .pdf format via e-mail.

ii.      Non-indigent Defendants with Retained Counsel or Pro Se and Third Party Requestors

a)      Serve a copy of the Request Form, including the specific dates of the proceeding(s) to be transcribed, on the JA of the assigned Judge in person or by e-mail, fax, or regular mail.

b)      The JA shall submit the video of the proceeding(s) to the Court’s transcription provider.  Thereafter, defendant, counsel, or the third party requestor is responsible for obtaining the transcript from the Court’s transcription provider.

2.      Proceedings Recorded by a Court Reporter:

a.      Appeals

i.        Indigent Defendants with Appointed Counsel or Pro Se

a)      File a praecipe with the Clerk.

b)      Serve a time-stamped copy of the praecipe, with the Request Form attached, on the Court Reporter for the assigned Judge in person or by e-mail, fax, or regular mail.  The Request Form must indicate the specific dates of the proceeding(s) to be transcribed.

c)      The Court Reporter shall make a full and accurate transcript from the stenographic notes taken in the case, provide the transcript to counsel or defendant, and file a copy with the Clerk of the Second District Court of Appeals.

ii.      Non-indigent Defendants with Retained Counsel or Pro Se

a)      File a praecipe with the Clerk.

b)      Serve a time-stamped copy of the praecipe, with the Request Form attached, on the Court Reporter for the assigned Judge in person or by e-mail, fax, or regular mail.  The Request Form must indicate the specific dates in the proceeding(s) to be transcribed.

c)      The Court Reporter shall make a full and accurate transcript from the stenographic notes taken in the case, notify defendant or counsel that the transcript is available for pick-up, and file a copy with the Clerk of the Second District Court of Appeals.

d)      Defendant or counsel shall compensate the Court Reporter for making the transcript in an amount determined by the Judges of the Court.  A copy of the fee schedule is available in the Court Administrator’s Office.

b.      Non-Appeal Requests

i.        Indigent Defendants with Appointed Counsel or Pro Se

a)      File a motion and proposed order with the Court.

b)      If the Judge grants the Motion and signs the Order, serve a time-stamped copy of the Order, with the Request Form attached, on the Court Reporter of the assigned Judge in person, or by e-mail, fax, or regular mail.  The Request Form must indicate the specific dates in the proceeding(s) to be transcribed.

c)      The Court Reporter shall make a full and accurate transcript from the stenographic notes taken in the case and notify defendant or counsel that the transcript is available for pick-up.

ii.      Non-indigent Defendants with Retained Counsel or Pro se and Third Party Requestors

a)      Serve a copy of the Request Form, including the specific dates of the proceeding(s) to be transcribed, on the Court Reporter of the assigned Judge in person, or by e-mail, fax, or regular mail.

b)      The Court Reporter shall make a full and accurate transcript from the stenographic notes taken in the case and notify defendant, counsel, or the third party requestor that the transcript is available for pick-up.

c)      Defendant, counsel, or the third party requestor shall compensate the Court Reporter for making the transcript in an amount determined by the Judges of the Court.  A copy of the fee schedule is available in the Court Administrator’s Office.  

iii.    Duplicates

a)      Upon request made directly to the Court Reporter, the Court Reporter shall provide copies of any original transcript of testimony that the Court Reporter previously prepared.

b)      The requestor shall compensate the Court Reporter in an amount determined by the Judges of the Court.  A copy of the fee schedule is available in the Court Administrator’s Office. 

B.      REQUESTS FOR VIDEOS OF PROCEEDINGS:

1.      In CD Format

a.      Complete a Request Form, including the specific dates of the proceeding(s) requested and indicating that the video is requested in CD format.

b.      Serve a copy of the Request Form on the JA of the assigned Judge in person or by e-mail, fax, or regular mail.

c.       The JA will notify the requestor when the CD is available for pick-up from Room 103 of the Montgomery County Courts Building.  A fee of $2.25, or a price to be determined by the Court, is due upon pick-up.

2.      Via E-mail

a.      Complete a Request Form, including the specific dates of the proceeding(s) requested and indicating that the video is requested via e-mail.  The Request Form must include the e-mail address of the requestor.

b.      Serve a copy of the Request Form on the JA of the assigned Judge in person or by e-mail, fax, or regular mail.

c.       The JA shall transmit the requested video via secure file transfer.

3.       Videos requested by and provided to non-attorneys shall not include sidebars and in-chamber conferences. 

C.      TRANSCRIPTS FILED WITH THE CLERK:

1.      Upon request, during regular business hours, the Clerk shall allow any individual to examine any transcript of testimony filed with the Clerk.

2.      Copies of transcripts shall be maintained and provided in accordance with the Ohio Rules of Civil Procedure, the Ohio Rules of Criminal Procedure, the Rules of Superintendence for the Courts of Ohio, the Ohio Revised Code, and any other applicable authority.

Rule 1.30 – Appeal Transcripts and Recordings

Effective 11/7/08

Amended 3/4/14; effective 3/21/14

A.      The Administrative Judge shall designate the method of recording for the Court’s courtrooms as required by Sup. R. 11.

B.      Any filing, exchange, transmission, or other transfer of recordings produced in the Court’s courtrooms shall be in a format produced by recording systems designated by the Administrative Judge pursuant to Sup. R. 11.

C.      If a rule, practice, or other procedure designates a recording medium or format that is obsolete or not authorized by the required designations in Sup. R. 11 to be filed, the media format designated by the Administrative Judge shall be utilized for any such filing.

Rule 1.31 – Attorneys

Amended 3/4/14; effective 3/21/14

A.      ATTORNEY WITHDRAWAL:

1.      No attorney who entered an appearance in any civil or criminal action shall withdraw the appearance, or have it stricken from the record, except by an entry of the Court.

2.      An attorney who appears or enters an appearance for a defendant in a criminal case shall not be permitted to withdraw except in open court in the presence of the defendant and upon written entry approved by the Court.

B.      CONDUCT:

At all times, attorneys shall conduct themselves with dignity and propriety and in accordance with the Ohio Rules of Professional Conduct.

C.      COMMUNICATION WITH THE JURY:

When permission is granted for the jury to visit a scene, the Bailiff or acting Bailiff shall point out places or objects agreed to by counsel or ordered by the Court.  Neither attorneys nor any other person shall communicate with the jury.

D.     TRIAL COUNSEL:

1.      If a designated trial attorney has a number of cases assigned for trial in courts of this state so as to cause undue delay in the disposition of such cases, the Administrative Judge may require the trial attorney to provide a substitute trial attorney.

2.      If the trial attorney fails to provide a substitute trial attorney, the Administrative Judge shall remove the trial attorney as counsel in the case.

3.      If the trial attorney was appointed by the Court, the Court shall appoint a substitute trial attorney.

4.      All counsel are directed to familiarize themselves with and conform to Sup. R. 41.

E.      ADMISSION OF OUT-OF-STATE ATTORNEYS:

Pursuant to Gov. Bar R. I, an attorney must be admitted to practice in the State of Ohio in order to practice in the Court.   The assigned Judge may admit out-of-state counsel upon written motion for admission pro hac vice pursuant to Gov. Bar R. XII.  The assigned Judge may require local counsel.

Rule 1.33 – Examination, Certification, Renewal and Removal of Notaries Public

Amended 1/10/96; Effective 2/15/96

Amended 12/16/02; Effective 1/1/03

Amended 5/5/09; Effective 5/11/09

Amended 8/2/11; Effective 8/8/11

Amended 3/4/14; effective 3/21/14

A.      JUDGES’ COMMITTEE ON NOTARIES PUBLIC:

1.      A Judges’ Committee on Notaries Public (“Committee”), consisting of members of the Dayton Bar Association (“DBA”) appointed by the President of the DBA and approved by the Board of Trustees of the DBA, shall be formed.

2.      The Committee, or its subcommittee, from time to time, but not less than once each month, shall conduct examinations of all applicants for the office of Notary Public to determine whether an applicant possesses the qualifications necessary to properly discharge the office of Notary Public as set forth in R.C. § 147.02 and this Rule.

B.      ORIGINAL EXAMINATIONS:

1.      Applications:  All applicants for Notary Public Commissions shall appear before the Secretary of the Committee and shall file:

a.      an application with a sworn written statement in the form prescribed by the Committee and containing all the information requested by the Committee and

b.      a fee of $55.00 plus the statutory fee prescribed by the Revised Code.

2.      The Secretary of the Committee (“Secretary”) shall conduct a background check of the applicant.

3.      The Secretary shall:

a.      Conduct an examination of the applicant.

b.      Submit the applicant’s examination to a representative of the committee to be graded.

c.       Submit a written report containing the names of applicants passing the examination, complete with applications, to the designated Judge of the Court (“Designated Judge”).  The names of applicants contained in the report are recommended by the committee for certification for the office of Notary Public.

d.      Notify applicants who have not passed the examination will receive written notification via U.S. Mail or electronic mail within seven days of examination.

4.      Failure to Appear:  If the applicant fails to appear for a scheduled examination, the Secretary shall:

a.      Schedule an alternative examination date.

b.      Notify the applicant by mail that, unless the applicant appears for the alternative examination date, the application shall be cancelled and the fee shall be forfeited.

c.       If the applicant appears for the examination, the Secretary shall proceed pursuant to Subsection (B)(3) of this Rule.

d.      If the applicant fails to appear for the alternative examination date after proper notification, cancel the application and retain the applicant’s fee. 

5.      Certificate of Qualification:

a.      Review by Designated Judge:  Upon receipt of the Secretary’s written report, the Designated Judge shall review the application and statement in light of the Committee report and grant or deny the applicant a certificate of qualification as required by law.

b.      The certificate of qualification shall indicate that the applicant is of good moral character; that the applicant is a resident of Montgomery County, Ohio; that the applicant possesses sufficient qualifications and abilities to discharge the duties of the office of Notary Public; and whether the applicant is an attorney at law qualified and admitted to practice in Ohio.

C.      APPEAL FROM ADVERSE COMMITTEE REPORTS:

1.      If the applicant’s certificate of qualification is denied, the applicant may request a hearing on the application by providing written notice to the Secretary, within five days of receiving the notice of the report, of the applicant’s desire for a hearing on the adverse report.

2.      Upon receipt of the request for a hearing, the Secretary shall set a time and place for the hearing, and provide notice to the Committee. 

3.      After the hearing, by the Committee, the Designated Judge shall grant or deny the applicant a certificate of qualification as required by R.C. § 147.02 and this Rule.

D.     RE-EXAMINATION:

If an applicant fails the original examination and the applicant does not appeal the adverse Committee report or the applicant’s appeal is denied, the applicant may file an application for re-examination.

1.      All applications for re-examination shall proceed in accordance with Subsection (B) and (C) of this Rule.

2.      Fee:  A fee of $30.00 shall be paid with the application for re-examination.

3.      Time period for application for re-examination:

a.      Upon the unsuccessful completion of a first or second examination, an applicant may file an application for re-examination after 30 days have elapsed from the date of the last unsuccessful examination.

b.      Upon the unsuccessful completion of a third examination, an applicant may file an application for re-examination after 60 days have elapsed from the date of the last unsuccessful examination.

c.       Upon the unsuccessful completion of a fourth or subsequent examination, an applicant may file an application for re-examination after one year has elapsed from the date of the last unsuccessful examination.

E.      RENEWAL:

A person who has been commissioned as a Notary Public in accordance with this Rule may seek renewal of the commission.

1.      Application:  A Notary Public seeking renewal of a commission shall file an application with the Secretary.  The application shall be made in writing, under oath, and shall include:

a.      The information required by the Committee and

b.      A fee of $55.00 plus the statutory fee prescribed by the Ohio Revised Code.

2.      Examination and Approval:  Every application for renewal shall be examined by the Secretary or a member of the Committee designated by the Chair for the purpose of reviewing renewal applications, and, except for good cause shown, the Chair or his or her designee shall approve the application for renewal.  Upon approval, a certificate of qualification shall be issued in accordance with Subsection (B)(5) of this Rule.

3.      Appeal:  If an application for renewal is denied, the applicant may appeal the denial in accordance with the procedures set forth in Subsection (C) of this Rule.

F.       REMOVAL:

The Committee may seek the removal, suspension, or discipline of any Notary Public by filing a complaint with the Clerk.  Such complaint shall be heard and determined by the Committee after notice of the hearing is provided to the individual or individuals against whom the complaint is filed.

G.     ACCOUNTING FOR FEES:

All fees set forth herein shall be paid to the DBA to cover the expenses of the Committee and the costs of the secretarial, clerical and accounting services rendered to the Committee.  On or before September 1 of each year, the DBA shall present to the Court Administrator an accounting of all fees received pursuant to this Rule and all expenditures made by the Committee.

Rule 1.35 – Facsimile Filing

Adopted 4/2/05; Effective 5/1/05

Amended 5/3/11; Effective 8/8/11

Revised and Incorporated into Mont. Co. C.P.R. 1.15 3/4/14; effective 3/21/14

Rule 1.37 – Electronic Filing of Court Documents

Effective 8/8/11

Revised and Incorporated into Mont Co. C.P.R. 1.15 3/4/14; effective 3/21/14

 

Rule 1.41 – Filing Sealed and In Camera Documents

Effective 8/8/11

Amended 3/4/14; effective 3/21/14

A.      DEFINITION OF TERMS:

The terms “public access”, “direct access”, and “remote access” as used herein are governed by the definitions contained in Sup. R. 44(I), (J) and (K).

B.      SEALED DOCUMENTS:

1.      Motion

a.      The Clerk shall not accept any document to be filed under seal unless a motion to make the filing has been made and approved by the Court.

b.      The motion and proposed order shall designate the requested level of access.

c.       The motion and proposed order shall be filed pursuant to Mont. Co. C.P.R. 1.15.

d.      The documents that are petitioned to be filed under seal shall not be attached to the motion, as the motion will not be sealed.

2.      Levels of Access

a.      No Remote Access by Public

i.        Access to documents via the Clerk’s Public Records Online (“PRO”) is limited to Judge, Court staff, Clerk staff, and counsel of record.

ii.      Public access to documents will be available only through the Clerk’s office, during regular business hours.

iii.    The docket and access to documents will be available through the Court’s eFile system, but only the docket will be available through PRO.

b.      No Remote or Direct Access by Public

i.        Access to documents via PRO is limited to Judges, Court staff, Clerk staff and counsel of record.

ii.      No public access to documents through the Clerk’s office.

iii.    The docket and access to documents will be available through the Court’s eFile system, but only the docket will be available through PRO.

c.       Judge Access Only

i.        No access is permitted by Court staff, Clerk staff, counsel of record, or the public.  Access to the documents will be limited to the assigned Judge.

ii.      Only the docket will be available through the Court’s eFile system and the PRO system.

3.      Method of Filing:  If a motion to file documents under seal is granted, the documents subject to the order shall be filed as follows:

a.      No Remote Access by Public:  The documents shall be eFiled pursuant to Mont. Co. C.P.R. 1.15.

b.      No Remote or Direct Access by Public:  The documents shall be eFiled pursuant to Mont. Co. C.P.R. 1.15.

c.       Judge Access Only

i.        The documents shall be filed with the Clerk, secured in a sealed envelope, with the face of the envelope containing the case caption, a descriptive title of the document (unless such information has been included among the information sealed), the date of the order permitting the item to be sealed, and a conspicuous notation stating “DOCUMENTS UNDER SEAL – JUDGE ACCESS ONLY.”

ii.      The Clerk shall file stamp the face of the envelope, enter on the docket that the document was filed under seal with “Judge Access Only,” and retain the envelope in the Clerk’s office.

iii.    The Court’s eFile system shall send a notice that a document with “Judge Access Only” was filed. The filer shall notify pro se parties not registered with the Court’s eFile system that a document with “Judge Access Only” was filed.

iv.     The filer is required to serve paper copies of the sealed document on all parties in the case.

C.      IN CAMERA DOCUMENTS:

1.      Unless otherwise ordered by the assigned Judge, documents submitted for in camera review shall be submitted directly to the assigned Judge and not filed with the Clerk.

2.      If the assigned Judge orders that documents submitted for in camera review be filed with the Clerk, the filer shall follow the procedures set forth in Subsection (B)(3)(c) of this Rule.

NOTICE

MONTGOMERY COUNTY COMMON PLEAS COURT, GENERAL DIVISION

NEW LOCAL RULES:

3.12, Drug Court

3.13, Veteran’s Court

3.14, Felony Non-Support Court

(EMERGENCY STATUS – EFFECTIVE JANUARY 1, 2014)

 

The General Division of the Montgomery County Common Pleas Court adopted NEW Local Rules effective January 1, 2014:

Loc. R. 3.12, Drug Court

Loc. R. 3.13, Veteran’s Court

Loc. R. 3.14, Felony Non-Support Court

 



Rule 3.12 – Drug Court

 

I.        Creation of Specialized Docket – “Drug Court”:

A.      Drug Court, is created in accordance to the requirements set forth in Sup. R. 36.20-36.29, Specialized Docket Standards, Appendix I Rules of Superintendence.  Drug Court is to facilitate efficient and effective treatment of drug addicted or drug abusing offenders.  Offenders shall be supervised by the Montgomery County Adult Probation Department to ensure compliance with community control sanctions and to assist offenders with criminogenic needs.

II.      Eligibility Criteria for Drug Court Admission:

A.      Offenders may be ordered by the sentencing Judge to Drug Court through a plea and sentencing, probation violation, judicial release, or through Intervention in Lieu of Conviction pursuant to R.C. § 2951.041.  The defendant must be amenable to community control; been charged with a felony offense of the third, fourth, or fifth degree; reside in Ohio; have little history of violent behavior; have a chemical abuse addiction in which the current and/or past criminal behavior has been alcohol or drug driven; have no acute health condition; and demonstrate a sincere willingness to participate in a long-term treatment process.

III.    Referring Criminal Defendants to Drug Court:

A.      Drug Court receives referrals from the General Division Judge to whom the case is assigned.  The Drug Court team shall review the case for legal/clinical eligibility as identified in the Drug Court Eligibility Criteria.  The sentencing Judge shall have final discretion to decide if the defendant is ordered to Drug Court.

IV.    Sentencing:

A.      Once the defendant has been ordered to Drug Court as a condition of community control, or as a condition for Intervention in Lieu of Conviction, along with any other appropriate sanctions, the case shall be transferred to the Drug Court Judge where any and all further court proceedings with respect to the defendant shall be heard by the Drug Court Judge.  The Drug Court Judge shall have the authority to conduct arraignments, accept pleas, enter findings and dispositions, revoke community control sanctions, revoke Intervention in Lieu of Conviction, grant community control sanctions and grant Intervention in Lieu of Conviction pursuant to R.C. § 2951.041.

V.      Drug Court Team:

A.      The Drug Court Team shall consist of the Judge, Adult Probation Department Manager and subordinate staff, Probation Officers, licensed treatment providers, community based employment program personnel, the Assistant Prosecuting Attorney and Defense Counsel.  The Drug Court team shall convene weekly to handle the docket, to discuss the progress and status of individual offenders, and to apply sanctions as needed.

VI.    Drug Court Treatment Phases:

A.      Drug Court offenders shall be required to complete phases of treatment as individually necessary, and all other requirements, as identified in the Drug Court Participant Handbook, and the Drug Court Participation Agreement.  Drug Court offenders shall comply with all the rules indicated to them by the Drug Court Judge at their initial or early appearance.  While in Drug Court, the offenders shall receive services to assist in meeting criminogenic needs.  Upon graduation from Drug Court, the offender may remain under community control sanctions or Intervention in Lieu of Conviction sanctions to ensure continued compliance/success.

VII.  Unsuccessful Termination from Drug Court:

A.      Reasons for termination from Drug Court include, but are not limited to, failure to remain clean from illegal substances and/or alcohol, violations of the rules of community control, violations of the conditions set forth for an Intervention in Lieu of Conviction, and/or failure to comply with the Drug Court participation agreement and Judge instructed rules.  Non-compliance with the aforementioned may result in a probation violation, or an Intervention in Lieu of Conviction revocation hearing.  Any such hearing shall be adjudicated by the Drug Court Judge.  At said hearing, the defendant may have the conditions of his/her community control, or conditions of his/her Intervention in Lieu of Conviction modified.  Modifications may include, but are not limited to, commitment to a Community Based Correctional Facility (CBCF), revocation of the defendant’s Intervention in Lieu of Conviction, termination from Drug Court, and/or revocation of the defendant’s community control.  The Drug Court Judge does maintain discretion to refer the defendant back to the General Division Judge originally assigned to the case for further proceedings.  At the hearing the normal laws for revocation apply and the defendant has a right to counsel.

VIII.            Sanctions for Non-Compliance:

A.      Sanctions for the Drug Court participant’s non-compliance vary in intensity and may include, but are not limited to, the following: (1) warning and admonition from the Judge; (2) demotion to an earlier specialized docket phase; (3) increased frequency of drug and/or alcohol testing and court appearances; (4) increased supervision contacts and monitoring; (5) community service or work program; (6) jail or out of home placement; (7) community control or probation or ILC violation; (8) termination from the specialized docket; (9) commitment to the Secure Transitional Offender Program (“S.T.O.P.”) or the MonDay Community Correctional Facility. 

IX.    Statistical Reports:

A.      For purposes of Supreme Court statistical reports, the case shall be considered disposed by the assigned Judge when the defendant is sentenced to Drug Court, or if the defendant is ordered into Drug Court as a condition of Intervention in Lieu of Conviction.

Rule 3.13 – Veteran’s Court

 

I.    Creation of Specialized Docket – “Veteran’s Court”:

A.  Veteran’s Court, is created in accordance to the requirements set forth in Sup. R. 36.20-36.29, Specialized Docket Standards, Appendix I Rules of Superintendence.  Veteran’s Court is to facilitate efficient and effective treatment of eligible veterans suffering from drug addiction and/or mental health issues.  Offenders shall be supervised by the Montgomery County Adult Probation Department to ensure compliance with community control sanctions and to assist offenders with criminogenic needs.

II.   Eligibility Criteria for Veteran’s Court Admission:

A.       Offenders may be ordered by the sentencing Judge to Veteran’s Court through a plea and sentencing, probation violation, judicial release, other early release options, or through Intervention in Lieu of Conviction pursuant to R.C. § 2951.041.  The defendant must be amenable to community control; been charged with a felony offense of the third, fourth, or fifth degree; reside in Ohio; have received an Honorable or General (Under Honorable Conditions) discharge from the United States Military; have a chemical abuse addiction and/or mental health condition in which the current and/or past criminal behavior has been driven; and demonstrate a sincere willingness to participate in a long-term treatment process.

III.  Referring Criminal Defendants to Veteran’s Court:

A.      Veteran’s Court receives referrals from the General Division Judge to whom the case is assigned.  The Veteran’s Court team shall review the case for legal/clinical eligibility as identified in the Veteran’s Court Eligibility Criteria.  The sentencing Judge shall have final discretion to decide if the defendant is ordered to Veteran’s Court. 

IV.  Sentencing: 

A.      Once the defendant has been ordered to Veteran’s Court as a condition of community control, or as a condition for Intervention in Lieu of Conviction, along with any other appropriate sanctions, the case shall be transferred to the Veteran’s Court Judge where any and all further court proceedings with respect to the defendant shall be heard by the Veteran’s Court Judge.  The Veteran’s Court Judge shall have the authority to conduct arraignments, accept pleas, enter findings and dispositions, revoke community control sanctions, revoke Intervention in Lieu of Conviction, grant community control sanctions and grant Intervention in Lieu of Conviction pursuant to R.C. § 2951.041.

V.   Veteran’s Court Team:

A.  The Veteran’s Court Team shall consist of the Judge, Adult Probation Department staff, Probation Officers, licensed treatment providers, community based employment program personnel, the Veteran’s Justice Outreach Coordinator, the Assistant Prosecuting Attorney and Defense Counsel.  The Veteran’s Court team shall convene bi-weekly to handle the docket, to discuss the progress and status of individual offenders, and to apply sanctions as needed.

VI.  Veteran’s Court Treatment Phases:  

A.      Veteran’s Court offenders shall be required to complete phases of treatment as individually necessary, and all other requirements, as identified in the Veteran’s Court Participant Handbook, and the Veteran’s Court Participation Agreement.  Veteran’s Court offenders shall comply with all the rules indicated to them by the Veteran’s Court Judge at their initial or early appearance.  While in Veteran’s Court, the offenders shall receive services to assist in meeting criminogenic needs.  Upon graduation from Veteran’s Court, the offender may remain under community control sanctions or Intervention in Lieu of Conviction sanctions to ensure continued compliance/success.

VII. Unsuccessful Termination from Veteran’s Court:

A.        Reasons for termination from Veteran’s Court include, but are not limited to, failure to remain clean from illegal substances and/or alcohol, violations of the rules of community control, violations of the conditions set forth for an Intervention in Lieu of Conviction, and/or failure to comply with the Veteran’s Court participation agreement and Judge instructed rules.  Non-compliance with the aforementioned may result in a probation violation, or an Intervention in Lieu of Conviction revocation hearing.  Any such hearing shall be adjudicated by the Veteran’s Court Judge.  At said hearing, the defendant may have the conditions of his/her community control, or conditions of his/her Intervention in Lieu of Conviction modified.  Modifications may include, but are not limited to, commitment to a Community Based Correctional Facility (CBCF), revocation of the defendant’s Intervention in Lieu of Conviction, termination from Veteran’s Court, and/or revocation of the defendant’s community control.  The Veteran’s Court Judge does maintain discretion to refer the defendant back to the General Division Judge originally assigned to the case for further proceedings.  At the hearing the normal laws for revocation apply and the defendant has a right to counsel. 

VIII.      Sanctions for Non-Compliance:

A.      Sanctions for the Veteran’s Court participant’s non-compliance vary in intensity and may include, but are not limited to, the following: (1) warning and admonition from the Judge; (2) demotion to an earlier specialized docket phase; (3) increased frequency of drug and/or alcohol testing and court appearances; (4) increased supervision contacts and monitoring; (5) community service or work program; (6) jail or out of home placement; (7) community control or probation or ILC violation; (8) termination from the specialized docket; (9) commitment to the Secure Transitional Offender Program (“S.T.O.P.”) or the MonDay Community Correctional Facility. 


 

IX.    Statistical Reports:

A.      For purposes of Supreme Court statistical reports, the case shall be considered disposed by the assigned Judge when the defendant is sentenced to Veteran’s Court, or if the defendant is ordered into Veteran’s Court as a condition of Intervention in Lieu of Conviction.

Rule 3.14 – Felony Non-Support Court

 

I.     Creation of Specialized Docket – “Felony Non-Support Court”:

A.   Felony Non-Support Court (FNS), is created in accordance to the requirements set forth in Sup. R. 36.20–36.29, Specialized Docket Standards, Appendix I Rules of Superintendence.  FNS is to supervise felons who are convicted of criminal non-support, who owe support to dependent children, and who are required to complete community control sanctions. Offenders shall be supervised by the Montgomery County Adult Probation Department to ensure compliance with Court-ordered child support and to assist offenders with criminogenic needs.

II.   Eligibility Criteria for Felony Non-Support Docket Admission:

A.   Felony Non-Support Docket offenders may be sentenced by the trial Court  to the Felony Non- Support Docket after a felony conviction for criminal Non-Support, a probation violation, or a Judicial Release or as a result of a Preliminary Hearing held by the Adult Probation Department.  The felony child support offender must be amenable to a community control sanction, owe current child support for dependent children and score above Low Risk ORAS.

III.  Referring Criminal Defendants to the Felony Non-Support Docket. 

A.   Felony Non-Support Docket receives referrals from the General Division Judge to whom the case is assigned.  The Pre-sentence Investigator, or his/her designee, shall review the case for legal/clinical eligibility as identified in the FNS Program Description.  Written eligibility information is then sent to the sentencing Judge. The sentencing Judge shall have final discretion to decide if the defendant is sentenced to the Felony Non-Support Docket.   

IV.  Sentencing:

A.   Once the defendant has been sentenced to the Felony Non-Support Docket as a community control sanction, along with any other appropriate community control sanctions, the case shall be transferred to the Felony Non-Support Docket Judge where any and all further Court proceedings with respect to the defendant shall be heard by the Felony Non-Support Docket Judge. 

V.   Felony Non-Support Docket Team:

A.   The Felony Non-Support Docket team shall consist of the Judge, Adult Probation Supervisor and subordinate staff, Probation Officers, Case Manager/Employment Liaison, CSEA Representative, the Assistant Prosecuting Attorney, and Defense Counsel.  The Felony Non-Support Docket team shall convene bi-weekly to handle the docket, to discuss the progress and status of individual offenders, and to apply sanctions as needed.


 

VI.  Felony Non-Support Docket Phases:

A.   Felony Non-Support Docket offenders shall be required to complete specialized docket phases as well as all other requirements as identified in the FNS Program Description, the FNS Participant Handbook, and the FNS Participation Agreement.  During said phases, services shall be provided to assist the offender with obtaining employment and meeting criminogenic needs.  Upon graduation from FNS, the offender may remain under community control sanctions to ensure continued compliance/success.

VII. Unsuccessful Termination from the Felony Non-Support Docket:

A.   Reasons for termination from the Felony Non-Support Docket include, but are not limited to, failure to pay Court-ordered child support, violations of the rules of community control, and/or failure to comply with the Felony Non-Support Docket Participation Agreement.  Noncompliance with the aforementioned may result in a probation violation hearing.  Any probation violation hearing shall be adjudicated by the Felony Non-Support Docket Judge.  At said hearing, the offender may have his/her community control modified.  Modifications may include, but are not limited to, commitment to a Community Based Correctional Facility (CBCF), termination from the Felony Non-Support Docket, and/or revocation of the offender’s community control.  Termination from the Felony Non-Support Docket does not preclude re-admission at a later date.

VIII. Sanctions for Non-Compliance:

A.   Sanctions for the FNS participant’s non-compliance vary in intensity and  may include, but are not limited to, the following:  (1) warning and admonition from the Judge: (2) demotion to an earlier specialized docket phase; (3) increased frequency of drug and/or alcohol testing and court appearances; (4) increased supervision contacts and monitoring; (5) community service or work program; (6) jail or out of home placement; (7) community control or probation or ILC violation; (8) termination from the specialized docket; (9) commitment to the Secure Transitional Offender Program (“S.T.O.P.”) or MonDay Community Correctional Facility.

IX.  Statistical Reports:

A.   For purposes of Supreme Court statistical reports, the case shall be considered disposed by the assigned Judge when the defendant is sentenced to the FNS Docket.

NOTICE

PROPOSED AMENDMENTS TO LOCAL RULES OF PRACTICE AND PROCEDURE

FOR THE GENERAL DIVISION OF THE MONTGOMERY COUNTY

COURT OF COMMON PLEAS

 

LOCAL RULE 3.09, COURT APPOINTMENT OF COUNSEL

 

COMMENTS DUE BY THURSDAY, OCTOBER 17, 2013

 

COMMENTS REQUESTED:  Pursuant to Loc. R. 1.03, Local Rules of Practice and Procedure for the General Division of the Montgomery County Court of Common Pleas, proposed amendments to Local Rule 3.09, Court Appointment of Counsel, are being published for a sixty-day public comment period beginning Monday, August 19, 2013, through Thursday, October 17, 2013.

 

Comments on the proposed amendments can be submitted via email to rulecom@montcourt.org or in writing to:

 

James E. Dare, Acting Court Administrator

Montgomery County Common Pleas Court, General Division

41 N. Perry Street

P.O. Box 972

Dayton, OH  45422

 

COMMENTS MUST BE RECEIVED BY 4:30 P.M. ON THURSDAY, OCTOBER 17, 2013.

 

 

EFFECTIVE DECEMBER 9, 2013

 

The proposed amendments to Loc. R. 3.09 will take effect on December 9, 2013, unless prior to such date the Court in its discretion, amends, modifies, or withdraws the local rule.  In the event the Court amends, modifies, or withdraws the local rule, the revision will be published for a thirty-day notice period.

Rule 3.09 – Court Appointment of Counsel

 

I.        When it appears to the Court than an accused in a criminal case is indigent, the Court shall utilize and appoint an attorney from the approved counsel program to represent the defendant in a criminal case.

II.      The attorney master list of the appointed counsel program and the qualifications therefore shall be created by the Judges of the General Division of the Common Pleas Court and shall be maintained by the Court Services Division, Caseflow Services.

III.    Any eligible attorney whose name does not appear on the master list may have his/her name added upon requestby filing an application for appointed counsel and forwarding same to the Court ServiceServices Division, Caseflow Services.

IV.    Each attorney is responsible for assuring compliance with each requirement.  Copies of these Criminal Rules of Practice and Procedure and the State Public Defender Commission’s “Attorney Qualifications to Represent an Indigent Client” can be obtained from the Court Services Division, Caseflow Services.

V.      Attorney Qualifications and Training:

A.      Assignment systems should be independent from individual influence or choice by any member of the judiciary, prosecution, or other elected official.  Assignments should be distributed as widely as possible among members of the bar on a rotary system designed to pair the defendant’s level of offense with attorneys who meet the qualifications for assignment.

B.      Where the defendant is charged with aggravated murder with death penalty specifications, or has been convicted and sentenced to death, any attorney appointed for trial, appellate, post-conviction or habeas corpus representation must meet the qualifications set forth in Rule 20 of the Ohio Supreme Court Rules of Superintendence and must appear on the list of attorneys qualified to accept appointments in capital cases promulgated by the Rule 20 committee, or have a waiver of pre-qualification issued by the Rule 20 committee.

C.      Where the defendant is charged with murder or aggravated murder without specifications or rape under the age of thirteen, counsel shall possess:

1.      At least three years of experience as an attorney, and prior to jury trial experience as trial counsel in two first degree felony or aggravated felony trials, or

2.      At least three years of experience as an attorney, and prior experience as trial counsel in ten or more jury trials, at least one of which was for a felony of the first degree.

D.     Where the defendant is charged with a felony of the first degree or second degree, other than murder or aggravated murder, counsel shall possess:

1.      At least two years of experience as an attorney, and

2.      Prior experience as trial counsel in two or more first degree, second degree, or third degree felony trials, at least one of which was a jury trial.

E.      Where the defendant is charged with a felony of the third degree, counsel shall possess:

1.      At least one year of experience as an attorney, and

2.      Prior experience as trial counsel in at least one fourth degree or fifth degree felony trial, at least one of which was a jury trial.

F.       Where the defendant is charged with a felony of the fourth or fifth degree, counsel shall possess:

1.      Prior experience as trial counsel or co-counsel in at least one criminal jury trial, felony or misdemeanor;

2.      Prior completion of a training program on criminal practice and procedure which is certified for continuing legal education credit by the Ohio Supreme Court commission on continuing legal education and approved for purposes of this section by the Court.

G.     Prior to the appointment or at the time of appointment, the attorney shall submit an application and counsel’s qualification information to the Court.  This process will allow the Court to determine whether counsel qualifies under these sections and the Administrative Code and is in compliance with the Ohio Public Defender Standards and Guidelines for Reimbursement prior to the submission of a bill.

VI.    An attorney wishing to change his/her classification or current appointment may apply by submitting a request, with supporting documentation, to the Court.  The attorney’s request shall be reviewed by the criminal law practice committee and a recommendation will then be submitted to the entire bench for approval or disapproval.

VII.  In evaluating compliance with these provisions and the Administrative Code 120-1-10(B)(5)(b)-(c) pertaining to the qualifications of appointed counsel for indigent criminal defendants charged with a felony of the fourth or fifth degree, the Court may evaluate an attorney’s overall experience, knowledge, training, and other qualifications and determine that the attorney meets or exceeds the level of experience, knowledge, and training conveyed by the approved CLE, thereby fulfilling the objective of those requirements and meeting the specified criteria.

VIII.             Mentor Attorney List:

A.      The Court shall develop a list of attorneys who will be assigned to and mentor new attorneys, or upon request, any attorney on the appointed counsel list.

B.      The list of mentor attorneys will include experienced attorneys who exceed the requirements listed in 3.09(V)(b)-(f).

C.      The mentor attorneys will be volunteers and will meet with the appointed attorney on an “as needed” basis throughout the time the appointed attorney remains on the appointed counsel list.

IX.    Placement on the Court’s appointed counsel list is a privilege and not a right and the Judges of the General Division of the Montgomery County Common Pleas Court may remove someone from the list at any time.

 

 

NOTICE

PROPOSED AMENDMENTS TO LOCAL RULES OF PRACTICE AND PROCEDURE

FOR THE GENERAL DIVISION OF THE MONTGOMERY COUNTY

COURT OF COMMON PLEAS

 

LOCAL RULE 2.39, CIVIL MEDIATION

 

(EMERGENCY STATUS – EFFECTIVE SEPTEMBER 3, 2013)

 

The General Division of the Montgomery County Common Pleas Court adopted the following amendment to Loc. R. 2.39, Civil Mediation, effective September 3, 2013.


 

I.        REFERRAL TO MEDIATION:

A.      Any civil case may be referred to mediation pursuant to a party’s motion, or by agreement of the parties, or on the Court’s own motion.  The referral to mediation may occur at the pretrial scheduling conference or at any other time prior to trial.

B.       If any case in which a mediation referral is requested or ordered, all parties and counsel have a continuing duty to and shall disclose to the assigned Judge, the Mediator, and the mediation staff whether any of the opposing parties have either resided in a common residence or are related by blood, adoption, or marriage, and have known or alleged domestic abuse at any time prior to or following the referral of the case to mediation and before conclusion of the mediation process.  Such party shall have a duty to participate in any screening required by the Supreme Court of Ohio’s Rules of Superintendence Rule 16 both prior to, and, in the Mediator’s discretion during the mediation session(s).

C.      No referral to Mediation shall be made in this Division in any of the following circumstances:

1.      As an alternative to the prosecution or adjudication of domestic violence;

2.      In determining whether to grant, modify or terminate a protection order;

3.      In determining the terms and conditions of a protection order; and

4.      In determining the penalty for violation of a protective order.

D.     Nothing in Section I (D) 1 – 4 of this rule shall prohibit the use of mediation in a subsequent divorce or custody case in another Division or court even though that case may result in the termination of the provisions of a protection order issued by this Court.

II.      OBJECTION TO MEDIATION:

A.      For good cause, a party may object to the referral to mediation by the Court on its own motion by filing a written request for reconsideration within ten (10) days of the date of the Court’s order of referral to mediation.

B.      Mediation processes shall be stayed pending decision on the request for reconsideration, unless otherwise ordered by the Court.

III.    CASE MANAGEMENT OF MEDIATION CASES:

A.      For those cases referred to mediation, the assigned Judge will continue to manage the case in the appropriate manner by setting a future trial date and establishing appropriate deadlines.

B.      In cases identified for mediation, a specific order of referral shall go out to counsel indicating the case has been referred to mediation and notifying them of the date and time of the following events:

1.      Telephone Status Conference:  A telephone status conference between the Mediation Department and counsel primarily responsible for the case shall be scheduled approximately thirty (30) days prior to the mediation conference.  During the telephone status conference, the case is reviewed for readiness for mediation.  Counsel must be available for any scheduled telephone status conference on a mediated case.

2.      Mediation Conference:  A mediation conference shall be scheduled no later than ninety (90) days prior to the scheduled trial date, unless otherwise ordered by the Court.  Parties and persons necessary with authority to settle the case, as well as counsel for all parties, are required to be present at the mediation conference unless directed otherwise by the Mediator.

C.      Each party shall submit a mediation conference statement via email not to exceed three (3) pages to the Mediation Department and all other parties no later than ten (10) business days prior to the mediation conference.  The statement shall set forth the relevant positions of the parties concerning factual issues, issues of law, damages, and the settlement negotiation history of the case, including a recitation of any specific demands and offers that have been conveyed.  These statements are not to be filed with the Clerk of Courts and will be maintained separate and apart from the case file.

1.      Any party that desires to convey confidential information to the assigned Mediator with the provision that the information not be disclosed to the other party without the submitting party’s later consent, shall submit the information to the assigned mediator clearly indicating the request for confidentiality.  The information is not to be filed with the Clerk of Courts and will be maintained separate and apart from the case file.

IV.    MEDIATOR:

A.      In accordance with O.R.C. 2710.08 (A) and (B), the Mediator assigned by the Court to conduct a mediation shall disclose to counsel, the mediation parties, and any nonparty participants any known possible conflicts that may affect the Mediator’s impartiality as soon as such conflict(s) become known to the assigned Mediator.  If counsel or a mediation party requests that the assigned Mediator withdraw because of the facts so disclosed, the assigned Mediator may withdraw and request that the assigned Judge appoint another Mediator.  If the assigned Mediator determines that withdrawal is not warranted, the assigned Mediator may elect to continue.  The objecting party may then request the assigned Judge to remove the assigned Mediator.  The assigned Judge may remove the assigned mediator and appoint another mediator from a list of qualified Mediators that is maintained by the Court.  If the assigned Judge decides that the objection is unwarranted, the mediation conference shall proceed as scheduled, or, if delay was necessary, as soon after the scheduled date as possible.

B.      List of Qualified Mediators:  The Court maintains a list of qualified Mediators which shall be maintained by the ADR Office and a copy shall be distributed to all Judges of the Court:

1.      All persons whose names are placed on the list of qualified Mediators shall submit to the ADR Office a regularly updated Curriculum Vitae (including a list of professional or association memberships) which CV shall be provided by the ADR Office to those requesting information on the assigned Mediator’s qualifications to mediate a dispute as required by O.R.C. 2710.08 (C).

2.      The Court will review applications of persons seeking to be added to the list of qualified Mediators in accordance with the procedures adopted from time to time by the Judges of the Court.

C.      An assigned Mediator shall receive a fee of two hundred dollars ($200.00) for conducting mediation conferences requiring four (4) hours or less of time.  In mediation conferences requiring more than four (4) hours, an assigned Mediator shall receive a fee of four hundred dollars ($400.00):

1.      In cases requiring conferences of unusual duration, the assigned Judge, on petition of the assigned Mediator and for good cause shown, may allow additional compensation.

2.      All compensation for assigned Mediators shall be paid upon proper warrant, from funds of Montgomery County, Ohio, which have been allocated for the operation of the Common Pleas Court of Montgomery County, Ohio.

3.      If the mediation conference is canceled with appropriate notification to the ADR Office more than forty-eight (48) hours before the scheduled mediation conference date and time, the assigned Mediator shall not be entitled to compensation.  If the mediation conference is canceled less than forty-eight (48) hours before the scheduled mediation conference date and time, the assigned Mediator shall be entitled to compensation at the full rate for conducting the mediation conference.

4.      Assessed fees due to cancellations shall be assessed on all cases, including mediation conferences scheduled before a Magistrate or other Court employees.  Magistrates or other Court employees shall not receive any additional compensation as a result of a cancellation.  Any cancellation fees assessed shall be paid to the Court’s ADR fund.

5.      Assessed fees due to cancellations shall be assessed on all cases, including mediation conferences scheduled before the Court Mediator.

6.      All assessed fees shall be deposited with the Clerk of Courts.

7.      The assessed fees shall not be taxed as costs in the case.  All funds generated by the assessment of these fees shall be paid to the Court’s ADR fund.

8.      If a cancellation is the result of a settlement resulting in termination of a case, the cancellation fee shall be divided evenly between the parties.

9.      If a cancellation is the result of a requested continuance or other reason, the fee shall be assessed against the party causing the cancellation.

V.      MEDIATION CONFERENCE:

A.      At the mediation conference, the assigned Mediator shall help the parties identify areas of agreement and explore the possibility of settling the case through mediation techniques:

1.      The facts and issues will be discussed by each side and a good faith effort will be made to settle the case;

2.      Any discovery or problems that are standing in the way of resolution will be identified including whether domestic violence is a factor impacting the continuation of mediation efforts;

3.      Possible solutions will be discussed and pursued to agreement, if possible;

4.      In the event the case is not ready for resolution, parties will identify the information or discovery they require in order to be in a position to negotiate further.

5.      Where appropriate, determining and encouraging referrals to legal counsel or other support services for all parties, including victims of and suspected victims of domestic violence.  For that purpose, the ADR Office has available for distribution to clients a brochure which includes local attorney referral contact information; information regarding Children Services; and resource information for local domestic violence prevention, counseling, substance abuse, and mental health services.

B.      Any additional mediation conferences shall be scheduled within sixty (60) days following the initial mediation conference, unless the assigned Mediator determines that an earlier or later date is necessary.  Agreed upon information exchange may be required prior to the next scheduled mediation conference.

VI.    ATTENDANCE AT MEDIATION CONFERENCES:

A.      Parties:

1.      All persons whose consent is required to resolve a dispute, whether or not named as parties in the pleadings shall attend all mediation conferences, unless their attendance has been excused by the assigned Mediator.  This attendance requirement reflects the Court’s view that one of the principal purposes of the mediation process is to afford litigants an opportunity to articulate their interests and to learn about the interests expressed by their opposing parties.

2.      If counsel or any mediation party or non-party participant becomes aware of the identity of a person or entity whose consent is required to resolve the dispute, but who has not yet been joined as a party in the pleadings, they shall promptly inform the assigned Mediator as well as the assigned Judge of such fact.

3.      Where attendance of a party is required, a party other than a natural person satisfies the attendance requirement if it is represented by a person or persons, other than outside or local counsel, with authority to enter into stipulations, with reasonable settlement authority, and with sufficient stature in the organization to have direct access to those who make the ultimate decision about settlement.

4.      In accordance with R. C. 2710.09, a party shall be permitted to have in attendance at a mediation session a designated attorney or counsel and/or other individual of their choosing.  However, parties should recognize that attendance of some individuals may hinder discussion or settlement in mediation and that all parties have power to decide whether to continue discussions, what terms of a proposed agreement are acceptable, and whether to enter into a settlement agreement.

5.      Failure of a party to attend a mediation conference or act in good faith during the mediation conference shall be reported by the assigned Mediator to the assigned Judge who may impose sanctions, which may include, but are not limited to, the award of attorneys’ fees and other costs, contempt or other appropriate sanctions at the discretion of the assigned Judge.

B.      Counsel:

1.      Counsel who is primarily responsible for each party’s case shall attend all mediation conferences and shall be prepared and authorized to discuss all relevant issues, including settlement.

2.      Failure of counsel to attend a mediation conference or act in good faith during the mediation conference shall be reported by the assigned Mediator or mediation staff to the assigned Judge who may impose sanctions, which may include, but are not limited to, the award of attorneys’ fees and other costs, contempt or other appropriate sanctions at the discretion of the assigned Judge.

C.      Adjusters:

1.      Unless excused by the assigned Mediator the responsible adjuster handling the case for an insurer shall be present at the mediation conferences.

VII.  PROCEDURE AT MEDIATION SESSIONS:

A.      Participation in mediation pursuant to an Order of this Court shall constitute agreement pursuant to O.R.C. 2710.07 by the participants that all “mediation communications” as defined in O.R.C. 2710.01 (B), in addition to being subject to the privileges set out in Chapter 2710, shall be treated by the parties, their counsel, the assigned Mediator, and the Court as confidential and shall not be disclosed without consent of the other participants in the mediation process, except for the following:

1.      Information that is statutorily mandated to be reported.

2.      Information that is permitted to be reported by O.R.C. 2710.06 (B).

3.      Information that is not privileged pursuant to O.R.C. 2710.05.

B.      If the assigned Mediator determines that further mediation efforts would be of no benefit to the parties, he or she shall inform all interested parties and the Court that the mediation is terminated.

C.      Upon reaching a settlement in mediation:

1.      The assigned Mediator, upon his or her discretion, may immediately prepare a written memorandum memorializing the agreement reached by the parties.  The memorandum shall be signed by the parties and counsel.

2.      Counsel shall be instructed to present a termination entry for approval within fourteen (14) days.

a.      The fact that a settlement has been reached shall be transmitted to a clerical person who shall check for the filing of the termination entry at the end of the fourteen (14) day period;

b.      If the termination entry has not been filed, then a notice shall be sent to counsel informing them that they have fourteen (14) days to file a termination entry; and

c.       If no entry has been filed fourteen (14) days after notice has been sent to counsel, then an administrative dismissal entry shall be sent to the assigned Judge for approval.

VIII.            CONTINUANCE OF A MEDIATION CONFERENCE, INABILITY OF MEDIATION TO PROCEED:

A.      The Mediation Department may grant a continuance of a mediation conference for good cause shown after a mutually acceptable future date has been arranged with all concerned parties.  In no event shall a mediation conference be continued more than twice without a continuance entry and approval of the assigned Judge.

B.      If a case is settled or dismissed prior to a scheduled mediation conference, the parties shall promptly file a settlement and conditional dismissal entry.  Counsel for plaintiff(s) shall inform the ADR Office by phone that the assigned mediation date will not be needed.  This contact shall be made immediately following agreed settlement.  Failure to notify the ADR Office will result in assessment of the fees set out in Section IV.

IX.    WRITTEN CONFIDENTIALITY AGREEMENT:

A.      In furtherance of the confidentiality agreement imposed by resort to the mediation process ordered by the Court, a written confidentiality agreement shall be executed by all those in attendance prior to beginning the mediation session.  If new or different persons attend a subsequent session, their signatures shall be obtained prior to proceeding further in the process.  The form of agreement is available for review by any prospective participant by logging onto the mediation tab of the ADR pages of the Court’s website at www.montcourt.org.

X.      GOOD FAITH:

A.      Each party shall proceed with mediation in good faith to reach an agreement.  Any party who participates in mediation shall perform all obligations expeditiously and shall not use the mediation process for purposes of delay or discovery in any manner other than in a good faith attempt at resolution.  Failure to comply with any portion of this rule may result in appropriate sanctions.

 

 
     
 
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