Administrative Council Radisson Hotel, Bismarck March 13, 2009
Present: Chief Justice Gerald W. VandeWalle, Chair Justice Daniel Crothers Judge Georgia Dawson Judge Laurie Fontaine (via phone) Judge Donovan Foughty Judge John Greenwood Judge Gail Hagerty Judge William McLees Judge Joel Medd Judge Mikal Simonson for Judge Paulson Judge Robert Wefald
Absent: Jim Hill Judge John Paulson Judge Allan Schmalenberger
Staff: Sally Holewa Louis Hentzen
Others Present: Jim Ganje Dennis Herbeck Rod Olson Don Wolf Carolyn Woolf Donna Wunderlich Mike Hagburg Mike Schwindt Justice Mary Muehlen Maring Kaitlyn Adorne
Minutes: Renee Barnaby
Chief Justice Gerald VandeWalle called the meeting to order at 10:00 a.m. and welcomed the
following guests: Justice Mary Muehlen Maring; Kaitlyn Adorne, mentee student from the
University of Mary; Mike Schwindt; and Mike Hagburg. Chief Justice VandeWalle also
introduced Carolyn Woolf as the new court administrator for Unit 4 and welcomed her to the
meeting. Judge McLees added Carolyn has been an excellent addition to Unit 4.
Child Support Pilot Project Mike Schwindt said the Child Support Enforcement has been working on a pilot project to
provide timely assistance to noncustodial parents in IV-D cases whose employment and ability to
meet their child support obligations have been negatively impacted by the economic downturn.
The goal of the pilot project is to secure a modified order that reflects the noncustodial parent's
ability to pay support due to his or her changed financial situation. When a noncustodial parent
in a IV-D case, who is covered under the pilot project, contacts a regional IV-D office for
assistance in meeting a child support obligation, the case will be prioritized with respect to
providing modification services. The project includes certain time frames that must be met to
ensure the cases will be prioritized. Judge Schmalenberger has been involved in the discussions
and has drafted a proposed order modifying the 18-day requirement set by N.D.R.Civ.P. 6(d) to a
lesser time period.
Chief Justice VandeWalle stated he is concerned because the modification only applies to an
obligor involved in a IV-D case so if they are represented by private counsel, they would not be
able to get the order changed as quickly. He said the downturn in the economy effects people
across the board.
Mr. Schwindt commented in order to participate in the PRIDE program, you have to have a IV-D
Mike Hagburg said the whole purpose is to get these cases before the court quickly and to put in
a mechanism so the court can act on them timely. The need for the timeliness is to avoid
arrearages, which create a lot of complications. The first paragraph of the proposed order does
make it specific to IV-D cases. The second paragraph modifies the 18-day time period set by
Civil Procedure Rule 6. There is nothing in the order that precludes the party who is answering
this request for modification from asking for a continuance at the hearing or asking for more time
to answer if the situation applies.
Judge Wefald suggested that perhaps in cases where there is a layoff, a stipulated order could be
issued, because child support is mathematical under the Child Support Guidelines.
Mr. Schwindt said it is critical to move the process quickly because when the arrearage accrues
at the end of the month, by federal criteria, we have to report it to credit bureaus. It continues to
be reported until the court order stops.
Judge Hagerty suggested the order apply to everyone effected by the economic downturn, not
just IV-D cases. She suggested that a form could be developed that would allow the party to
indicated they are bringing a motion concerning child support, they are alleging their
employment is effected by economic downturn, and they are giving notice to the other party that
they are moving under an expedited procedure. The form would indicate that if they want to
reply they can ask the judge for more time.
In response to a question concerning the status of the pilot project, Mr. Schwindt said it is
estimated they are a week or two away from implementation.
Chief Justice VandeWalle requested Mr. Schwindt send the final copy of the draft pilot project to
all district judges. Judge Foughty asked Mr. Schwindt to distribute the appropriate forms to all
district judges if the pilot project is successful.
Judge Hagerty suggested the proposed order state that the motion must provide information
concerning the basis for asserting employment has been affect by the economic downturn.
Is was the consensus of the Council to ask Judge Hagerty and Judge Schmalenberger to develop
language for the proposed order and send it out to the presiding judges for comment.
[Mike Schwindt and Mike Hagburg left the meeting]
MinutesIt was moved by Judge Wefald, seconded by Judge Medd, to approve the September 10,
2008 minutes. The motion carried.
Weighted Caseload Study Don Wolf directed the Council to page 12 of the meeting materials. He said the numbers are
based on the 2008 case filings. For 2008, we are showing a judge shortage of 9.72 judges, which
is an increase of 1.75 from the 2007 weighted caseload study of 7.53 FTE shortage. The East
Central showed the highest judge shortage of 3.41 judges followed by the South Central and
Northwest with 2.76 and 2.7, respectively. He noted some of the factors that were added into the
weighted caseload study were (1) a second adult drug court added in Fargo in December 2007;
(2) an adult drug court added in Grand Forks in August of 2008; and (3) a juvenile drug court
added in Williston in 2008.
Mr. Wolf said using the two-year average, we are showing a judge shortage of 8.39 judges,
which is an increase of 2.08 compared to the 2006-07 study of 6.31 shortage. Again, the East
Central is showing the greatest judge need of 3.16, following by the Northwest with 2.45, and the
South Central with 2.36.
Judge Hagerty noted the South Central has 1.45 referees and 1/5 of the referee time goes to the
Southwest Judicial District.
[Don Wolf left the meeting]
Weighted Caseload Assessment for Clerks (WAPC) Sally Holewa said the WAPC study shows a continued overall decrease in case filings from 2007
to 2008.The overall FTE need is 122.65, with 94.79 FTEs needed for the state-funded counties
and 28.81 needed for the contract counties. The shortage in state-employed clerk offices is 4.79
In response to a question from Judge McLees as to why the judge's data show an increase in
filings for a particular county while the clerk filings for the same county could show a decrease,
Donna Wunderlich responded the difference is the judges are figured on a unique disposition,
which would include some reopened cases from 2007. The clerks workload study goes strictly
by new cases filed.
Appointment to Juvenile Policy Board Judge Kleven's term on the Juvenile Policy Board expired in January 2009. She is eligible for
reappointment but has declined. It was moved by Judge Greenwood, seconded by Judge
Foughty, to nominate Judge Narum to the Juvenile Policy Board for a three-year term
expiring January 1, 2012. The motion carried.
Court Improvement Project Committee Louie Hentzen stated a complete report from the chair of the Court Improvement Project
Committee is included in the meeting materials. He said in addition, the court improvement
grants for the next cycle are due June 30. He distributed the grant applications and strategic
plans for each of the three subcommittees. He broke down the changes for each of the grants as
Basic Grant - The change in the basic grant is the focus of the qualified expert witness. The
Indian Affairs Commission will be contacting the tribes to identify the qualified expert witness.
No monies from the grant will be attached to that.
Training Grant - The change in the training grant is the removal of the ICWA forums, which is
$5,000.The money was transferred into registration fees for our judges or court personnel to
attend the ICWA Conference.
Data Collection & Analysis Grant - Funds were added for modification and customization of our
court information systems, either through Odyssey or CMS.
After brief discussion, it was moved by Judge Wefald, seconded by Judge Dawson, to
approve the grant proposals for the next fiscal year. The motion carried.
As a corollary to the discussion on the grant proposals, Judge Wefald requested training be
developed on how to be a good witness, how to testify in court, and how to dress in court. Sally
said there are a number of pro se brochures available that give generalities for witnesses, how to
address the judge, when to approach the bench, how to sit down, etc. In fact, a brochure for self-represented litigants was recently before the Court Services Administration and was voted down.
Judge Medd suggested adding information to our website on general guidelines for witnesses.
Appointment of Counsel in Sexually Dangerous & Mental Health Cases Chief Justice VandeWalle stated he attended a hearing before a legislative committee and one of
the comments made was although it is a county expense, the county has no say in the
appointments. The appointments are made by the judge and the county is simply told to pay the
bills. He is of the opinion that these things ought to be contracted for by the county, and the
court should not be involved because it presents the same conflict of interest the old indigent
defense system did.
Rod Olson said he uses contract counsel for mental health cases but not for sexually dangerous
cases. He said he has talked to the counties about the need for a contract for legal representation
of sexually dangerous offenders but they are not interested in pursuing this option because they
wouldn't know what to set the annual amount at. Donna Wunderlich said the same is true in
Burleigh County. In the small counties, they don't have contracts in place but have been
contacting the attorneys on contract with the public defender's office and paying them the same
rate as the contract.
Judge Foughty suggested drafting a proposed resolution for the county commission stating it is
the county's obligation to develop a process on how those attorneys are going to be appointed.
Judge Greenwood stated he has not had complaints about attorney fees in mental health cases,
but there are complaints about fees that are paid to independent examiners because those are
sizeable. He said he recently had a case where the fees were $5,000.
It was the general consensus of the Council that the issue results from the extreme difficulty in
finding attorneys to take the sexually dangerous offender cases, rather than an unwillingness of
the county to recognize its responsibility. Judge Dawson said given the seriousness of a sexually
dangerous offender cases, very skilled attorneys are needed for the position. She suggested
sending a letter to the county commissioners stating this issue has come up as a result of
comments at the legislature and offering to work with them to resolve the issue. It was the
consensus of the Council that Ms. Holewa work with the administrators to follow up with this
with the counties.
Ledger Card Sally Holewa said the finance department would like some direction on the amount of time and
effort that the court wants to dedicate to collecting fines that were assessed prior to 2001. She
said the court collected around $62,000 off of the old funds the first year and she is uncertain of
the amount collected the second year. She said there are some cases that have not been
committed to civil judgments and asked the Council if that is something they want to pursue; and
secondly, how much effort should they continue to put into collecting those pre-2001 cases?
Judge Wefald suggested reducing old fines and fees to civil judgments and then turn them over to
collection agencies around the state.
In response to a question from Judge Dawson asking if the tax intercept is automatic on a
judgment that is not paid, Ms. Holewa responded it automatically looks at overdue accounts and
then sends a report to the Tax Department.
Chief Justice VandeWalle suggested the term "write-off" should not be used. He said there an
old attorney general's option that states you cannot write-off an overdue account because it
violates the constitution of giving away state property or state funds. Ms. Holewa clarified that
the fines would still be due and collectible it is just that the court would not be actively
attempting to collect them. He also said the National Center for State Courts has been working
on a tax intercept bill at the federal level. In response to a question from Judge Dawson asking if
we are losing the opportunity for a tax intercept if we convert the cases to a civil judgment, Ms.
Holewa responded by the time we get to civil judgment, we usually have exhausted our efforts
on trying to collect and clarified that at this time the tax intercept only works in North Dakota.
[Judge Wefald left the meeting] It was moved by Judge Dawson, seconded by Judge McLees, that with regard to the old
accounts that we have identified as not having civil judgments, the clerk work in
cooperation with the presiding judge to put a process in place to get those cases converted
to civil judgment, and that following that effort, the court mark as uncollectible all of the
old cases prior to 2001 where we have not been able to find the defendant or get any
response from the defendant. At the suggestion of the Chief Justice, the motion was
amended to include the statement that the intent of the Administrative Council is to
prioritize for collection those fines that were assessed after January 1, 2001 when the
operation of the clerk's offices came under the responsibility of the state. The motion
Justice Crothers asked what other states are doing to collect the fines and fees that have gone to
judgments and if they are turning them over for collection.
Ms. Holewa responded in the states she is familiar with, there is no effort to collect once it is a
civil judgment. They generally mark them uncollectible two years after the last payment was
Louie Hentzen said in Kansas, in his particular court, they had $26 million in accounts receivable
and they introduced legislation to allow courts to contract with collection agencies. It was an
effort that was received very well across the state through the legislature and it worked fine. The
collection agency takes 1/3 off the top.
Judge McLees asked if there a consistent process for converting these to civil judgments across
the state. Ms. Holewa responded when the judge orders these to be docketed, then our system
prints a notice and affidavit of identification and it is sent to the states attorney. The state's
attorney signs off and sends it back to the clerk to process.
Ms. Holewa said her third question for the Council is in regard to restitution. She said our
procedures address only cases where the debt becomes uncollectible. We also have restitution
due in cases where the defendant is deceased. Should the clerk be giving notice to the victim and
what should be done with the uncollectible restitution in the case? Since there is no write-off
procedure programmed for restitution, these accounts stay on the ledger card indefinitely because
we don't have any authorization or procedure to get rid of them. Judge Hagerty suggested
closing the file rather than saying it is uncollectible. Chief Justice VandeWalle said
theoretically, someone could file a claim against the estate if there is a probate. In light of the
statute that says the victim can reduce it to civil judgment and collect, the court system should
not take further action once the defendant dies.
Jim Ganje said the current ledger card procedure allows restitution to be moved to uncollectible
status if the clerk is collecting restitution. He said the clerk would still need to send notice to the
person to whom the restitution is owed, letting them know they have the option of pursuing civil
judgment. This option does not apply to those cases in which the state's attorney is collecting
It was moved by Judge Dawson, seconded Judge Medd, that with regard to restitution, the
clerk may mark the defendant deceased and stop any further collection activities. The
It was moved by Justice Crothers to adjourn the meeting. The motion carried the meeting
adjourned at 12:10 p.m.