Re: PROBATE RECORDS
ALL RESIDENTS OF WAPELLO COUNTY, PAST AND PRESENT
Posted By: Dean A. Glenn (email) In Response To: Re: PROBATE RECORDS (Bill Hansen)
Date: 10/11/2004 at 19:34:44
MEA CULPA!!
After spending several hours today researching the duties of the Clerk of the District Court, I have found the following code in the Iowa Code. Section 602.8 defines and specifies the duties, obligations, requirements and qualifications of the Clerk of the District Court. Because the District Court is in fact defined as the county court of jurisdiction where the applicable proceedings occur, that means that as the Clerk of the County Court, the Wapello County Court Clerk is also the Clerk of the District Court, as well as the Clerk of the District Probate Court.
Section 602.8103 of the Iowa Code, is very concise regarding the powers of the District Court Clerk where records are concerned. Why the code regarding the destruction of records is listed under the powers of the District Court Clerk is unclear, as you will note that such destruction can only be completed AFTER reproduction of the originals, and AFTER approval by a majority of the Judges in the District AND AFTER an order has been issued by the District Court. While the law is clear as to what the Clerk may do with these records upon satisfaction of the conditions as stated above and below, it is also concise about the public's right to access the records at any time whether they be the originals or reproductions, as well as where and how the reproduction of the records must occur, which includes "in such a manner as to allow complete and immediate access to any person desiring to review the records". The first few points of that section follow verbatim:
602.8103
General powers.
The clerk may:1. Administer oaths and take affirmations as provided in section 63A.1.
2. Reproduce original records of the court by any reasonably permanent legible means including, but not limited to, reproduction by photographing, photostating, microfilming, computer cards, and electronic digital format. The reproduction shall include proper indexing. The reproduced record has the same authenticity as the original record. The supreme court shall adopt rules to provide for continued evaluation of the accessibility of records stored or reproduced in electronic digital format.
3. After the original record is reproduced and after approval of a majority of the judges of the district court by court order, destroy the original records including, but not limited to, dockets, journals, scrapbooks, files, and marriage license applications. The order shall state the specific records which are to be destroyed. An original court file shall not be destroyed until after the contents have been reproduced. As used in this subsection and subsection 4, "destroy" includes the transmission of the original records which are of general historical interest to any recognized historical society or association.
4. Destroy the following original records without prior court order or reproduction except as otherwise provided in this subsection:
a. Records including, but not limited to, journals, scrapbooks, and files, forty years after final disposition of the case. However, judgments, decrees, stipulations, records in criminal proceedings, probate records, and orders of court shall not be destroyed unless they have been reproduced as provided in subsection 2.
While this obviously provides for the eventual transmission of the documents falling under and specified by a "destruction order" entered by the District Court to any recognized historical association, it does not provide for the transmission to GENEALOGICAL SOCIETIES, nor for the restriction of access to the records (especially PROBATE records) at ANY time. It also mandates that regardless the format or media, the PROBATE RECORDS ARE TO BE KEPT IN PERPETUITY. PERIOD. AND under the Iowa Rules of Civil Procedure as well as stated here in this portion of the code, records pertaining to Probate Court proceedings must be reproduced and those reproductions must be permanent and legible and MUST INCLUDE PROPER INDEXING, before the originals or the original reproductions are destroyed or transmitted.
In no case does this exclude Gloria or any other employee of the Clerk from their obligation to provide access to the records, to provide copies of the records upon request or to act outside of the codes and outside the laws of the State of Iowa, and outside the laws of the United States, by relinquishing custody and control of the original documents unless and until reproductions have been made and approved and the court has issued an order specifying the exact records which are to be destroyed.
By the way, Bill Hansen, thank you for your input which provoked this search. A point of rule- when not specifically defined within separate sections of the code, and/or when not specifically excluded from the guidelines of the Rules of Civil Procedure, definitions of the terms used within the code are found in the Rules of Civil Procedure and all records defined under chapter 22 of that code are considered public records. The probate records are, as you will note, specifically included in the definitions of terms under IC 22. Procedure regarding the probate records is found under 22,602.8, 633, and just about every other section of Iowa Code which deals with the District Court, the County Court, the Probate court and YES, Iowa still has law pertaining to (of all things) THE CIRCUIT COURT.
In no way, shape, or form does our constitution or any code assign a title of ownership of anything to the court as the judicial branch of the government. The reason is that THE PEOPLE are the government. NOT THE COURT. The Court, like the government, is convened and operated by the will of and for the benefit of the people. And power is granted to officers of the court by the people to act upon the wishes of the people, NOT upon their own wishes and desires.
Furthermore, IN NO PLACE COULD I FIND THAT THE CLERK OR ANY OTHER OFFICER OF THE COURT COULD ACCEPT ANY GIFT OR GRANT FOR THE PRIVILEGE OF REPRODUCING THE RECORDS which are designated for destruction. This is more specifically addressed in other areas of the code as being conduct which creates an unconscionable conflict of the public right and interest and which destroys the full faith and credit of the people in their government. In other words, if the court provides any privilege (a benefit not specifically included in or prohibited by the law) to the highest bidder, it gives the impression that the court is available for other purposes, provided the price is right. Morally, ethically and legally, regardless of which code you judge the actions of the Wapello County Court Clerk's office by, the actions being taken are wrong.
I visited the Iowa Attorney General's website, and he has devoted much space to the dilemma of outdated accumulated records, and the public's rights to access versus the court's need for space. And in all reality, these documents and records could easily have been digitally scanned and simultaneously destroyed, and done so in such a manner that never would this have become an issue. But let us not forget the issue is ACCESS, OR THE LACK THEREOF, NOT whether the record accessed is the original or a reproduction. We have been denied a very basic and inalienable right to access those records. What comes tomorrow, the denial of access to the Court??
Finally, it is not my intent to debate the definitions of or the merits for the actions of anyone through my postings. I feel the time and effort is better expended by uniting on the issues that are common for us all, and overcoming the problem through the law, versus quibbling about what we know to be unauthoritative reference or definition.
TO USE THE LAW TO OUR BENEFIT, WE MUST KNOW THE LAW. In some cases, most people would be surprised to learn some of the provisions of the law. FOR INSTANCE, do any Wapello County residents know that to be retained as the Clerk of the Court, the Clerk must present a petition signed by at least 10% of the registered voters of the county every four years, and if they do not do so by the set deadline, they may not serve as clerk for the next four years?? Interesting way of doing business in my opinion...
For the sake of my family history, and in deference to Gloria, her errant behavior has been memorialized in the book I have just finished writing with Sharon Schwartz Aasheim. Many residents of Wapello County are aware of and probably know a member of my Schwartz family, which has called Wapello County "home base" for 135 years. The Schwartz family members have historically served in official capacities in the county, and their efforts have improved the county's standard of living, and their estates have historically been left to the benefit of churches and schools in the county, including most recently the generous gifts of two very prosperous cousins, Edward and Ernest Schwartz, which continue to benefit any citizen of the county seeking to improve their lot in life through education at area colleges. So to say that my family has a vested interest in the history and the future of the county, is somewhat an understatement. Our book "The Schwartz Legacy" is a 475 page accounting of that legacy including many stories of the family as it grew and prospered in Wapello County. Incorporated by marriage into the Schwartz family are many of the longstanding, well-known, prosperous and influential families of the county since its incorporation in 1844 (?).
More information is available concerning the book at http://www.theschwartzlegacy.com
Dean A. Glenn
Co-author, The Schwartz Legacy
The history of the family surnamed Schwartz which originated in and around Brettnach, Moselle, France and which immigrated to Wapello County, Iowa in 1869
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