Members Present Surrogate Judge, Allan Schmalenberger, Chair Rod Olson, Unit 2 Trial Court Administrator Kathy Ouren, ECJD Clerk of Court Judge Jay Schmitz, via phone Donna Wunderlich, Unit 3 Trial Court Administrator Jean Delaney, Attorney Judge Gary Lee Sarah Cannon, Attorney, via phone Merylee Castellanos, Unit 1 Trial Court Administrator, via phone Carolyn Probst, Unit 4 Trial Court Administrator Judge Steven Marquart, via phone Peter Welte, Attorney, via phone Judge David Nelson
Not Present Judge Karen Braaten Gabrielle Goter, Attorney Jay Greenwood, Attorney John Grinsteiner, Judicial Referee Judge William Herauf Judge John McClintock Judge Thomas Schneider
Guests Andrew Frank, Attorney Mike Hagburg, Attorney Chris Iverson, Unit 2 Asst. Trial Court Administrator Judge John Greenwood
Staff Present Sally Holewa, State Court Administrator Scott Johnson, Asst. State Court Administrator Lana Zimmerman, scribe
Judge Schmalenberger called the meeting to order. A motion was made by Judge Lee to
approve the November 1, 2013, minutes. The motion was seconded by Jean Delaney,
Judge Schmalenberger welcomed new member, Judge David Nelson to the committee. Also
recognized, the re-appointment of Judge Karen Braaten, Judge Gary Lee, Jean Delaney, Sarah
Cannon, and Darcie Einarson.
Judge Schmalenberger introduced staff attorney, Mike Hagburg. Mr. Hagburg shared the Joint
Procedures Committee are making changes that could affect some procedures. The specific
change before the committee was a proposed change to Rule 43. The change would allow a
defendant in a felony case to enter a not guilty plea in writing. It is proposed to add, “the
defendant need not be present under any of the following circumstances: felony offense - the
offense is punishable by imprisonment for more than one year, and the defendant respresented by
counsel submits a not guilty plea in writing waiving presence at the arraignment.”
The research that Mr. Hagburg completed is that this would be allowed under current law. The
current constitutional standards state the defendant has a right to be present in the courtroom at
all of the significant proceedings in a criminal case, but the defendant can waive that right. In
some parts of the state, defendants are allowed to submit their not guilty pleas in writing, while in
other parts of the state, the judges don’t allow it even if the defendant is willing to waive their
Judge Schmalenberger asked if this also provides the defendant’s right to a preliminary hearing
in writing? Mr. Hagburg said it hadn’t been suggested, but he is asking this committee for
direction and thoughts on the idea of the change.
Judge Schmitz shared he was involved in the inception of the idea along with Mark Friesz of
Vogel law firm.
The rule states “unless this rule provides otherwise, the defendant must be present at the initial
appearance, arraignment, and the plea.” Constitutionally, that could be waived. Some judges
have allowed the waiver, but that the rule indicates that it is not allowed.
Judge Lee shared it is a waiver of both the preliminary hearing, and the arraignment, because the
arraignment follows immediately after the preliminary hearing.
Judge Marquart shared as a member of the Joint Procedures Committee, they have discussed it
and the ECJD think the individuals should be appearing in court on felony charges. Judge Lee
agreed in a felony matter, the defendant should be in court. This change would eliminate the
formalities of preliminary hearings and arraignment. He is opposed.
Judge Lee shared some of the history. It is a hold over to the old days when there was the district
or county court restrictions. This would have been the first appearance in district court. They
have made their initial appearance in county court. They would have the probable cause
determination in the county court and make the initial appearance in district court. The
arraignment is the first appearance. They were lumped together when the county court/district
court distinction was eliminated.
Ms. Delaney shared it is a lot of hours for someone who is appointed in an indigent defense case
if they are having to travel from one area to another for a 5 minute hearing, which adds a lot of
NWJD Calendar Practices Study
Ms. Holewa shared this was a one day, free service study, offered by the National Center for
Judge Nelson sent out an email to the lawyers about changes and has received good feedback.
Ms. Probst said it gave the opportunity to discuss and reflect on what the processes were and get
insight. The study would be more beneficial if there was more time allowed.
Ms. Holewa stated she would seek a contract and get a more in depth project going.
Follow up on Judge’s Survey on Criminal Process Ms. Holewa sent out a survey with only 4 responses. There doesn’t appear to be any new ideas
on how to make the criminal process better or more efficient and meaningful to the defendant.
Working Smarter Not Harder - How Excellent Judges Manage Cases Please refer to handout. Judge Schamlenberger thinks there is some good information for
everyone to utilize and suggested it to be emailed out to all judges.
SEJD Caseflow Management Plan Rod Olson distributed the SEJD Caseflow Plan with committee members. Goals were docket
currency guidelines, equalize the workload in the SEJD between the judges, bring uniformity in
procedures and forms in one document, and to insert items when the judges reach an agreement.
Controversial items in the plan are, trial dates being set immediately. Trials are being set way
too early. 2% of the cases go to trial, waiting to set them, may settle early for both civil and
The first caseflow plan was approved in 2004. The clerks in the SEJD are expected to generate
and review their docket currency reports by the 10th of each month before it goes to the attention
of the judge. When Odyssey was implemented, clerks struggled with how to close cases. When a
case was reopened, a criminal case could see 2,000 days, which should never happen.
Recently, an Emergency Plan and Firearms in the Courtroom Plan, were implemented and added
to the Caseflow Plan along with Courtroom Rules which lists what types of items can be brought
into the courtroom.
A master individual calendaring system is in place. Recently, we have tried to map master
calendar days out, so that the public defender isn’t expected to be in two counties at the same
time. These are grouped to leave judges a week to do trials. They may have 1 day in one county,
and a couple days in another county. On criminal, trial dates are not set too soon, as to tie up
courtrooms and attorneys. Misdemeanor cases are assigned to a judge after a not guilty plea. A
felony is signed after the preliminary hearings. There are two approaches to misdemeanor cases.
First, a pre-election notification is sent out to the attorney, which the attorney and defendant have
to sign stating they want a jury trial, a bench trial, or entering a plea. The deadline is 42 days to
get back to the court. If it is not returned, a mandatory disposition conference is set, where they
have to appear. Some individuals wanted to go to mandatory dispositional conferencing after 42
days. A pilot project was created in some of the counties where they set a mandatory
dispositional conference immediately after a not guilty plea. These are beneficial at the present
time. 49% of the cases are settling either before or on that date. 13% of the cases actually go to
trial. 63% settle before trial.
Divorce cases under civil, a scheduling order is sent out right when the case is filed and a pre-trial is set 6 months out. In the pre-trial order, all of the housekeeping items such as mediation,
needs to be completed before the pre-trial date. This is working well, so far.
When the caseflow plan is changed, a notice is sent out to the unit noting the change. With the
addition of 3 new counties, it has changed the process in caseflow. Chris Iverson, Judge
Greenwood and Rod Olson met with every attorney and sheriff who wanted to discuss the
caseflow plan. They also visited with the clerks of court and deputy clerks of court to make sure
they are following and understanding the plan.
The acceptance of the revised caseflow plan has been well received.
Judge Greenwood shared that with the work on this caseflow plan, they decided to travel to each
county to meet with county commissions, attorneys, and clerks to give the expectation of the
Judge Greenwood shared some counties including small counties are full with no calendar or
judge time. At that time, the criminal area in docket currency was not good. In the pilot, there is
a mandatory dispositional conference, which requires the attorney to meet with the client, they
agree and sign a form, which is required in 42 days. What has happened is that the docket
currency is in compliance and is noted some cases are settled before the form is due. In some
cases, they will want a change in plea sentencing and want to come into court. Some also settle
before the trial date.
It does take the cooperation of the state’s attorneys, and the defense attorneys. There is a good
understanding with everyone involved, as to the purpose which has had an immediate impact
with this new process.
Jail Statistics for Minority Justice Implementation Committee
Mr. Andrew Frank is the staff attorney for the Minority Justice Implementation Committee.
The Minority Justice Implementation Committee has been gathering statistical data to look at the
pre-trial status and if there is a way to reduce the number of inmates in pre-trial status by doing
something different in caseflow.
Burleigh, Cass, Ward, and Williams County statistics were provided and compiled. Grand Forks
and Dickinson jail data is still forthcoming.
The Minority Justice Implementation Committee was looking at race and ethnic make up. It was
suggested to come to the Caseflow Management Committee to see if there are some good
practices in the pre-trial that could be utilized.
Judge Schmalenberger asked if there was a concern of a disproportionate of the ones that are
Mr. Frank shared the data was compiled in the context of providing baseline data for objective
tools, or evidence based tools to use at pre-trial to help out with decision making. This is more
used toward evidence based sentencing. This is the context for minority justice.
Judge Lee asked if there is a concern that certain classes or ethnicities are being held too long at a
Mr. Frank answered that it is a possible concern. Another is looking at disproportion, in the
judicial decision making. Who is being looked at as a population, and how is it playing out in
judicial decision making.
Mr. Frank was directed to work on more statistical data to bring back to this committee, in July.
Judge Nelson suggested it would be nice to break it down to felonies versus misdemeanors,
which would give more data, as well as county jails versus penitentiary data.