Chair Steven E. McCullough called the business meeting of the Judicial Conference to order at 10:00 a.m. on November 24, 2014. Sally Holewa, State Court Administrator, called the roll:
Justices of Supreme Court
Gerald W. VandeWalle
Dale V. Sandstrom
Carol Ronning Kapsner
Daniel J. Crothers
Lisa K. Fair McEvers
Judges of District Court
Laurie A. Fontaine
Lee A. Christofferson
John C. McClintock, Jr.
Michael G. Sturdevant
Jon J. Jensen
Debbie Gordon Kleven
Douglas R. Herman
John C. Irby
Steven L. Marquart
Steven E. McCullough
Wade L. Webb
John E. Greenwood
Bradley A. Cruff
James D. Hovey
Thomas E. Merrick
Jay A. Schmitz
Jerod E. Tufte
Sonna M. Anderson
Cynthia M. Feland
Bruce B. Haskell
James S. Hill
David E. Reich
Thomas J. Schneider
William A. Herauf
Dann E. Greenwood
Richard L. Hagar
Stacy J. Louser
Douglas L. Mattson
David W. Nelson
Joshua B. Rustad
Robin A. Schmidt
Judges of Municipal Court
Robert A. Keogh
Mary Muehlen Maring
Joel D. Medd
William A. Neumann
John T. Paulson
Allan L. Schmalenberger
Wayne K. Stenehjem
Clerk of the Supreme Court
A quorum was declared and the business meeting proceeded.
Chair McCullough asked that the agenda be amended to allow for the reading of a resolution in memory of Judge Karen Braaten. Judge Webb moved to amend the agenda as suggested. Seconded by Judge Mattson. Motion carried. Chair McCullough then read the attached resolution. Judge Medd moved the Conference adopt the resolution as read, with some typographical corrections as noted by the members of the Conference. Seconded by Justice Kapsner. Motion carried and the memorial resolution in honor of Judge Karen Braaten was adopted.
Chair McCullough drew the attention of the members to the minutes of the June 12, 2014 meeting and noted that a minor correction had been made since the minutes were put in the Judicial Conference handbook. Judge Herauf made a motion to approve the minutes of the June 12, 2014 meeting. Seconded by Judge Feland. Motion carried and the minutes were approved as amended.
In response to a question from Chair McCullough, Attorney General Wayne Stenehjem said that because the Judicial Conference is subject to the Open Meeting laws, any split vote on a substantive issue must be held by roll call vote.
Chair McCullough then called on Justice Sandstrom to deliver the report of the Committee on Legislation. Justice Sandstrom began his report by acknowledging the contributions of his fellow committee members, Judge Irby and Judge Mattson.
Justice Sandstrom reminded the members that the duties of the Judicial Conference include receiving and evaluating suggestions relating to the improvement of the administration of justice and considering and making recommendations to the Supreme Court for any matter pertaining to the judicial system. He then reviewed the process the Committee on Legislation used during the last legislative session.
a. The Committee on Legislation will receive and evaluate suggestions from members and review proposed legislation;
b. If the Committee determines that the suggestion or proposed legislation relates to the administration of justice or affects the operation of the judicial branch, the Committee will use electronic means to notify the members of the Judicial Conference and solicit comments on the suggestion or proposed legislation;
c. The Committee on Legislation may take a stance either supporting or opposing the proposed legislation; and
d. The Committee on Legislation may draft proposed legislation and seek legislative sponsors to carry bills on behalf of the Judicial Conference.
Justice Sandstrom moved that the Judicial Conference adopt the same process for the upcoming legislative session. Seconded by Judge Fontaine. Motion carried.
Justice Sandstrom then drew the members attention to the legislative proposals for review included in their handbook, as well as an additional proposal that was handed out at the Conference and a handout on the Uniform Acts being introduced in the coming legislative session. The Conference then took up each proposal in turn.
Judge Chambers Location: Justice Sandstrom said the 70/30 requirement for judge chambers is a remnant of unification that was intended to ensure that when the mandatory reduction of judgeships occurred not all the judgeships would be taken from small counties. He said the reductions were completed long ago, and the current reality is that judges are not required to live in their chambered city. He said there are some judges that live and work outside of the city where they are officially chambered. He said that ultimately it should be the workload that determines where judicial chambers are located. Judge Mattson suggested that an alternative to eliminating the requirement would be to change the threshold population in the statute to something higher than 10,000. Judge Graff and Chair McCullough spoke in favor of the bill. Judge Sonna Anderson suggested that a consequence of a failed bill might be a more stringent enforcement of the current 70/30 chambers requirement. Judge Fontaine and Judge Webb spoke of the history of the bill and raised concerns on behalf of the rural counties while acknowledging that the current requirement for locating chambers is no longer realistic given how the workload is shifting. They spoke of the need for the judiciary to control chamber locations to reflect where judges are needed. Justice Kapsner reminded the members that the Judicial Planning Commission recommended eliminating the 70/30 requirement. She said county opposition to the bill may not exist as long as the court educates legislators on the level of service that is currently being provided. Attorney General Wayne Stenehjem said that he was the original sponsor of the bill. He said he proposed the legislation over concern about actual judicial services to rural counties. He said at the time, there was talk of the judicial branch creating trial centers and changing the venue statute and making other statutory changes intended to accelerate the removal of services from rural counties. He said if the Judicial Conference decided to go forward with this proposal, the Council needs to lay the groundwork so legislators can be confident that the court was committed to servicing rural counties. Chief Justice VandeWalle said the current statute was well intentioned, but the law is not working as intended. He cautioned that if the Conference moves forward with a proposal to eliminate the 70/30 requirement, there may be unintended consequences because its reception by the legislature is uncertain.
Judge Foughty moved to introduce the bill as drafted. Seconded by Justice Crothers. After further discussion, the motion was withdrawn.
Judge Mattson moved an alternative motion to reinstate the language of the current statute and substitute 30,000 instead of 10,000 for the population requirement. Seconded by Judge Fontaine. After further discussion, the motion was withdrawn.
Judge Christofferson suggested changing the percentage requirement to 80/20, rather than eliminating the requirement altogether. Attorney General Wayne Stenehjem suggested that the Conference postpone discussion on the proposal until after the Committee on Legislation has had an opportunity to discuss the proposal with the leadership of the North Dakota Association of Counties. In response to a concern raised by Justice Sandstrom, Attorney General Stenehjem said that as long as appropriate notice is given and there is an opportunity for the public to witness the meeting, the Judicial Conference could meet by telephone or online without violating the Open Meeting laws. After further discussion, it was the general consensus of the members to allow the Committee on Legislation to continue to work on a proposal without the need to bring it back to the Judicial Conference for a vote.
Upon the withdrawal of the motion and alternate motion that were on the floor, Attorney General Wayne Stenehjem moved that the Committee on Legislation confer with the Association of Counties to get input or support on legislation, either as proposed or as amended to a version that both the Judicial Conference and the Association of Counties could support. He further moved that the Committee on Legislation also confer with the Association of Counties on a source to be used for determining population when designating chambers. Seconded by Judge Herauf. Motion carried unanimously on a voice vote.
Disclosure of Residential Address on Candidate Reporting Statements: Justice Sandstrom said this proposal was drafted at the request of the Judicial Conference members at the June 2014 conference. He said there are safety concerns for judges who are required to provide a physical address on public forms. He said the statute does not require this, but the requirement was imposed by the way the Secretary of State was implementing the law. He said that recently the Secretary of State has modified the candidate forms to facilitate use of a post office box rather than a physical address. Following discussion, there was a general consensus that the Committee on Legislation should move the proposal forward.
Requirement of Financial Disclosure Statement by Candidates: Justice Sandstrom said this proposal was drafted at the request of the Judicial Conference members at the June 2014 conference. He said the statute currently makes a distinction between a judicial candidate and a candidate committee for a judicial district candidate, but the way the Secretary of State has implemented the law requires those who run unopposed or who self-finance their campaign to pretend as if they had a finance committee. He said this amendment would clarify the statute. Attorney General Wayne Stenehjem said there is another statute that covers this for candidates for other offices. He said the Secretary of State proposed the current statute as an aid to ensuring the reporting requirements were not missed. Justice Crothers questioned whether the proposal needed to include reference to “unopposed” since that is not a term that is defined and is not a condition relevant to the reporting requirement itself. After further discussion, there was a general consensus that the Committee on Legislation should move the proposal forward, with some additional tweaks to the language of the bill.
Authority to Impose Additional Periods of Probation: Justice Sandstrom said this proposal was drafted at the request of the Judicial Conference members at the June 2014 conference. Currently judges are limited to imposing only two terms of probation. This proposal would remove that limitation. Justice McEvers said this issue was discussed at the Commission on Alternatives to Incarceration, and she believes some members of the Commission would oppose this change since there is a push by the Commission to get people off of probation and out of the system. Judge Foughty, Judge Sonna Anderson and Judge Romanick spoke in favor of removing the limitation since it will give judges more discretion to impose additional probation rather than automatically sending someone to prison on a second probation violation. Judge Cruff said it is his belief that the change is necessary to effectuate any kind of re-entry court, such as the HOPE program. Judge Haskell moved that the Conference support a change in legislation to allow judges the discretion to impose more than two periods of probation. Seconded by Judge Webb. A roll call vote was taken and the motion passed by a vote of 41 yes, 6 no, and 2 members absent and not voting.
Interdisciplinary Committee on Problem-Solving Courts: Justice Sandstrom called upon Chief Justice VandeWalle to explain this proposal. Chief Justice VandeWalle said the proposal was drafted at his request. It would establish an interdisciplinary committee to be a central coordinating body to make recommendations to the Supreme Court on the establishment of new problem-solving courts. He said the committee’s focus will be on determining the viability of creating new courts, not control of existing drug courts. He said that problem-solving courts require the commitment of resources from two branches of government, and there needs to be a way for the two branches to work together from the outset to ensure that any new courts are sustainable. This item was presented for informational purposes only, and the Conference was not asked to take any action on it.
Guardianship Standards Workgroup Proposals: Justice Sandstrom called upon Judge Feland to explain the eight legislative changes being proposed by the Guardianship Standards Workgroup. A member suggested that the proposals be reviewed to ensure that they do not create any confusion between the duties of a conservator and the duties of a guardian. Justice Sandstrom suggested that all of the proposals be consolidated into a single bill. Judge Feland agreed to this suggestion and will work with the Committee on Legislation to put the proposal into final format. This item was presented for informational purposes only, and the Conference was not asked to take any action on it.
Report of Interim Judiciary Committee: Justice Sandstrom explained that this report and proposed legislation was before the Judicial Conference for informational purposes only. He suggested that the members pay special attention to the proposal related to the DUI laws since it was being introduced to address some deficiencies in the current law.
Report of Commission on Alternatives to Incarceration: Justice Sandstrom explained that this report and proposed legislation was before the Judicial Conference for informational purposes only. He then called upon Justice McEvers, as a member of the Commission on Alternatives to Incarceration, to comment on the work of the Commission. Justice McEvers explained that the intent of most of the proposals is to put more discretion in the hands of the judges. She said the only proposal that might be of some concern to the judges was the one that would allow the Department of Corrections to impose a 48-hour hold on a defendant without a probation violation being filed. She said the idea behind the proposal was to allow for quick consequences for behaviors. She said the bill limits the amount of time a defendant could be held in a year and that any incarceration under this proposal would be at state expense. The other one that may be of concern is the one that would give the Department of Corrections the authority to discharge a defendant from probation after 18 months, if certain conditions are met. She said that under the proposal, authority to discharge the defendant early had to be granted by the judge at the time of sentencing. She said the intent behind the proposal was to prevent probation agents from becoming collection agents.
Uniform Law Commission Proposals: Justice Sandstrom explained that this was before the Judicial Conference for informational purposes only.
Justice Sandstrom concluded his report by encouraging the members of the Judicial Conference to continue to follow the legislative proposals during the session.
After thanking Justice Sandstrom and the members of the Committee on Legislation for their work, Chair McCullough called for any additional business to come before the Conference. Chief Justice VandeWalle rose to confer the ASTAR Fellowship award upon Judge Bruce Romanick. It was explained that ASTAR is an acronym for Advanced Science and Technology Resource Center, and the purpose of the program is to educate judges to serve as local resources in regard to advanced science or technology issues.
Chief Justice VandeWalle called the members attention to a publication, “Working Smarter, Not Harder: How Excellent Judges Manage Cases,” and encouraged each district to hold discussions regarding the suggestions in the publication.
There being no further business, Chair McCullough called for a motion to adjourn. Surrogate Judge Graff moved adjournment. Seconded by Judge McClintock. The motion carried and the meeting ended at 11:43 a.m.
State Court Administrator
Executive Secretary to the Judicial Conference