Administrative Council Radisson Hotel, Bismarck March 12, 2010
Present: Chief Justice Gerald W. VandeWalle, Chair Judge Sonja Clapp Justice Daniel Crothers Judge Georgia Dawson Judge Laurie Fontaine (telephonically) Judge Donovan Foughty (telephonically) Judge William Herauf Jim Hill Judge Steven McCullough Judge William McLees Judge John Paulson (telephonically) Judge Robert Wefald
Absent: Judge Gail Hagerty
Staff: Sally Holewa Louis Hentzen
Others Present: Dennis Herbeck Rod Olson Don Wolf Donna Wunderlich Justice Maring Muehlen Maring Lillian Riggs
Minutes: Renee Barnaby
Chief Justice Gerald Vandewalle called the meeting to order at 10:00 a.m. and a roll call was
taken. Chief Justice VandeWalle welcomed the following guests: Justice Mary Muehlen Maring
and Lillian Riggs, mentee student from the University of Mary.
Minutes It was moved by Judge Wefald, seconded by Judge Herauf, to approve the September 11,
2009 minutes. The motion carried.
2009 Weighted Caseload Study and WAPC Study Don Wolf said the 2009 weighted caseload study shows a need of 9.25 additional judges and is
based upon 156,334 case filings in 2009. The 2008 study showed a judge need of 9.27 judges
and that was based upon 153,981 case filings. The large increase is due to traffic filings and that
increased by 2,644 cases. However, the misdemeanors and contract collection cases decreased
compared to 2008.
The East Central, Northwest, and South Central Districts show a judge shortage of greater than
two. However, the study does not include the new judges that started in January 2010. There are
no districts with a judge excess of greater than one.
The 2008-09 data shows a judge need of 9.25 additional judges as compared to the 2007-08
study, which shows a shortage of 8.39 judges. The total average filings for 08-09 were 155,158
cases and this compares to 153,349 for the 07-08 average. Again, this does not include the two
new judges that were added in January.
Mr. Wolf noted that because Cass and Traill Counties converted to the Odyssey Case
Management System in October 2009, there are some slight variances in the way cases are
counted in Odyssey as compared to UCIS. He said under the Odyssey system, the civil caseload
numbers are slightly smaller than what they would have been under UCIS if counties had
remained there the entire year. When a case has a count 1 and 2, Odyssey will only recognize
the charge filed as count 1, whereas UCIS will count both count 1 and count 2 in the caseload
totals. In addition, Odyssey counts criminal cases based on the case type for what the original
charges were filed, whereas UCIS counts the case type based on how it was disposed.
Judge Clapp said when a defendant pleads guilty to a reduced charge, UCIS counts the case type
at the time of disposition, whereas Odyssey counts it as when it is filed. She questioned how that
coordinates with BCI. For example, if a person is charged with a felony and pleads to a
misdemeanor, how does that show up when someone does a records check? Ms. Holewa
responded it shows up as a reduced charge. There is a disposition field which transmits to BCI
the original charge and what the defendant plead to. However, when counting cases, just the case
type is used.
Mr. Wolf said the 2009 WAPC (weighted caseload assessment for clerks) study shows an
increase in case filings of 2,229 as compared to 2008. The total filings in 2009 were 154,769 and
that compares to 152,540 in 2008. The total 2009 FTE need increased by .45 positions as
compared to 2008, for a total of 123.1 FTEs. The 2008 FTE need had decreased by 1.89
positions as compared to 2007. When averaging the 2008-09 numbers, the total FTE need is
122.88 FTE or .72 FTEs less than the 2007-08 average of 123.60. State employed clerk offices
FTE need decreased by .53 FTEs while the contract offices decreased by .19 FTEs. There are
nine county operated/state funded counties that have an FTE need of greater than one and those
are Barnes, Bottineau, McKenzie, McLean, Mercer, Mountrail, Pembina, Ransom, and Traill
counties. Six state funded counties have an FTE shortage totaling 8.54 or 1.42 FTEs per county.
State employed clerk offices with an FTE need shortage of greater than one included Cass,
Williams, Burleigh, and Morton Counties. Six state funded counties have an FTE surplus
totaling 4.28 or .71 FTEs per county. However, only Richland County has an excess of staff
greater than one.
The 2009 legislative assembly authorized three temporary deputy clerk positions, which are
located in Williams, Burleigh, and Cass Counties. These positions are not included in the study.
Sally Holewa directed the Council to an error in her cover memo, which is on page 15 of the
meeting materials. She said there is an inconsistency in the second paragraph of her cover memo
on the WAPC study. The third sentence should read, "Case filings for juvenile and
misdemeanors and infractions have decreased."
Ms Holewa recommended both the weighted caseload and the WAPC studies be discontinued
because it will be difficult to measure data from the Odyssey counties accurately against the
Justice Crothers said the Supreme Court uses these numbers in particular when there is a
vacancy. He asked what method will be used if there is a vacancy and how long will the court be
without reliable stats? Ms. Holewa responded we still have other methods that could be used.
For example, we have the number of case filings, number of dispositions and number of judges,
and we could compare the numbers against other years. We will just be missing the one-to-one
comparison we had with the weighted caseload study. She said realistically, we would be
without stats until 2013.
Judge Clapp said on the issue of child support, if a divorce is final but they come back for a
modification of child support, how does that fit into the count? Ms. Holewa responded there is
an actual child support category on the weighted caseload study. It counts the support as count 2
in the case. Rod Olson added that in Odyssey, it will not be opened as a new case type. If there
is a dissolution in a divorce and six month later they come back for child support, a new file is
not opened. The file shows as reopened, but it does not count in the weighted caseload.
Judge McCullough suggested it would be a good time to revisit the weighted caseload to try and
make it more accurate.
It was moved by Judge Wefald, second by Judge Herauf, that the weighted caseload study
and WAPC study be suspended pending the full implementation of the Odyssey system.
The motion carried.
It was moved by Judge McCullough, seconded by Judge McLees, to revisit the weighted
caseload study and WAPC study during this interim process to try to improve it. Ms.
Holewa will work with the National Center to starting gathering the information.
Judge McCullough suggested one of the things he would like to change is how we break down
the criteria used for the different types of files. For example, a civil contract collection file that
goes by default is much different than a major malpractice, or a class C possession of drugs case
is a lot less time consuming than a AA felony murder case. He suggested reviewing the criteria
before we start collecting data.
After further discussion, the motion carried.
Judge Wefald requested an update on the status of the law clerk study and redistricting issue.
Ms. Holewa responded she has collected the data for the law clerk study. She is in the process of
developing a staffing study but because the use of the law clerks and the duration of their stay is
inconsistent, it is difficult to come up with a standard. However, she will have a report for the
Council at the next meeting. With regard to the redistricting study, Ms. Holewa said the Judicial
Planning Committee is reviewing it and to contact them for any specifics.
Disorderly Conduct and Domestic Violence Protection Order Forms on the Web Chief Justice VandeWalle said the disorderly conduct and domestic violence protection order
forms were recently included on the web.
Sally Holewa distributed and read aloud a letter from the North Dakota Council on Abused
Women's Services Coalition Against Sexual Assault in North Dakota (NDCAWS). The letter
stated that, "While NDCAWS is supportive of increased access to all kinds of legal services to
victims of domestic and sexual violence, we are hesitant to support this action. We believe that
victims are best served by interaction with an advocacy agency and trained staff to assist them.
Advocates can help victims create a safety plan and complete a risk assessment that may or may
not support the need for a protection order. Advocates provide many services beyond protection
order assistance and these services are vital to the safety and security of a victim and his/her
family. The open access to the forms alone does not promote, encourage or inform about these
services. Additionally, we are wary of a practice that may lead to an intended abuse of the
protection order process...".
Judge Wefald said one of the problems is people are filing domestic violence protection orders
when in fact they should be filing for disorderly conduct instead. He said perhaps Ms. Holewa
could contact NDCAWS and suggest one of the judges could attended one of their conferences or
meetings to discuss domestic violence and disorderly conduct.
Judge Foughty said all of the concerns outlined in the letter are correct and legitimate concerns.
However, people should have access to the court system so they can decide what course of action
they want to take. Chief Justice VandeWalle agreed that both of the points in the letter were well
taken and suggested that perhaps we keep the forms on line for experimental purposes.
Judge Paulson asked Ms. Holewa to send a copy of the letter to those participating via phone.
Chief Justice VandeWalle asked Ms. Holewa to contact NDCAWS and explain that while we
understand their concerns, the court will continue providing the forms through its public website
and the issue will be revisited if problems arise.
Report on Court Improvement Project Judge Sonya Clapp, chair of the Court Improvement Project Committee, gave a status report
regarding the Committee's activities during 2009.
Guardian Ad Litem (GAL) Project - Judge Clapp said the GALs have expressed concern that
they do not have any immunity from lawsuits and have to hire their own attorneys if they are
named in a suit. This is a great concern coupled with the fact that the contract with UND will be
ending in June 2010. Chief Justice VandeWalle said it is his understanding they have
approached the legislature about getting immunity. Ms. Holewa added that an RFP was let out in
January for GAL services, and we are in the process of negotiating with Youthworks to take over
the program. Youthworks intends to hire the GALs as part-time employees and provide them
with liability insurance under their umbrella. Youthworks started the GAL program and was the
original provider of GAL services for the court.
Indian Welfare Act (ICWA) - Judge Clapp said the subcommittee continues to work on concerns
regarding the identification of expert witness. She said while the subcommittee recognizes the
function is not the responsibility of the court, ICWA imposes federal standards and processes on
state and local agencies and courts when a child custody proceeding involves an Indian child.
The subcommittee will be performing an internal audit to capture information regarding the level
of compliance with the various requirements of ICWA and to note any possible training needs.
Dennis Herbeck, chair of the subcommittee, added that they piloted this audit, and the audit is
internal. The final report could be completed by the fall.
Education and Training - Judge Clapp reminded the judges to watch their emails for the training
opportunities under the committee. The emails are periodically sent out by Lee Ann Barnhardt.
Along with Louie Hentzen, Lee Ann Barnhardt, Bob Rutten, and Tara Muhlhauser, Judge Clapp
said she attended the Third National Judicial Leadership Summit on the Protection of Children in
Austin, Texas, in October 2009. The team continued to refine their action plan, which has been
ongoing since 2005. The plan emphasizes a quality assurance program and increased judicial
review of child deprivation cases as well as quality representation for parents. As a result of this,
Judge Clapp asked the Council to consider adding an education representative to serve on the
Data Collection and Analysis - Judge Clapp said the subcommittee is now chaired by Judge
Narum. The subcommittee developed an RFP, which was awarded to the Kate Harrison
Consulting Firm. The Firm created performance measures for deprivation cases. Louie Hentzen
stated they are in the final phase of their contract and will be submitting a report in June on the
It was moved by Judge Clapp, seconded by Judge Wefald, to add No. 9 to Section 2A, as
follows: "One representative of a North Dakota educational service or entity appointed by
the Administrative Council." The motion carried.
Clerk Activity in Monitoring of Judgment Conditions Sally Holewa recalled at the September 2009 meeting, she was asked to survey the clerks of
court to determine what they are doing in regard to monitoring conditions of sentence. She
completed the survey and a copy of her report and recommendations are included in the meeting
materials. As expected, there is a wide variance between each clerk and what they do or do not
do to monitor and enforce conditions of sentence. Some of this is based on what resources are
available in the county, the relationship between the court and the local state's attorney, and the
local judge philosophy. Ms. Holewa said she tried to take all these things into consideration in
making her recommendations. She said there are very clear instances where the clerks are acting
without complete information and believes that is something that should be avoided. The clerks
should not be acting on it and the judges should not be acting without complete information. The
judge should not be prosecuting it.
Judge Clapp said one of the problems is there are so many different areas that need monitoring
such as the payment of administrative costs, community service, chemical dependency
evaluations, and reporting to jail. There are so many different functions that seem to apply better
to certain areas.
Chief Justice VandeWalle questioned the Council on whether or not this should be a formal
policy or just simply give direction.
Judge McLees suggested discussing the issue with the states attorneys and the clerks. Judge
Foughty agreed that further discussion is necessary before any decisions are made.
Judge McCullough responded he would be hesitant to go the route of a policy because different
practices fit depending upon what resources are available so there should be some flexibility. He
asked for input from the court administrators.
Dennis Herbeck said from his perspective, he sees both sides. The clerks fear that something
will be missed, and it will be reflected negatively on the court. He is in favor of a guideline,
however, by using a guideline, he does not see a lot changing.
Donna Wunderlich agreed with Mr. Herbeck but said the judges are used to having this
information available, and depending upon which path we take, we may take some of the
information away that the judges are accustomed to having.
Rod Olson said we basically turn a lot of these clerk of court offices into probation offices and
that is taking on an unnecessary responsibility. He believes culture plays a big role in the
practice. In the southeast for example, one clerk office may check everything and then another
office is opposite. Unless the judges are supportive of the decision, nothing will change.
Ms. Holewa said while the clerk activity is directed by administration, we certainly want to direct
them in a way that best fits the needs of the court system. She does not think culture should play
a large role in the decision because the WAPC study measures what people do and is necessary
to determine when clerks are needed or if an office is overstaffed.
It was moved by Judge Dawson, seconded by Judge Wefald, to have Sally Holewa send out
her report and letter of recommendations based on her study to the judges, clerks and
state's attorneys, individually, asking for their comment. The motion carried.
Revision to Policy 505 Jim Ganje received a request from Jim Fleming with the State Child Support Enforcement office
to revise Section 9E of Policy 505. Mr. Fleming suggested a revision regarding the termination
of a child support obligation upon the death of a minor child along with a few other technical
revisions. Mr. Ganje drafted the amendments, which are before the Council for consideration.
It was moved by Judge Wefald, seconded by Judge Herauf, that the amendments as
presented be approved. The motion carried.
Appointment to the Juvenile Policy Board Referee Dale Thompson's term on the Juvenile Policy Board expired on December 31, 2009. He
is eligible for reappointment by the Council. It was moved by Judge Herauf, seconded by
Judge Paulson, to appoint Dale Thompson to a third term on the Juvenile Policy Board.
The motion carried.
Update on Westlaw Database of District Court Judges Opinions Sally Holewa said approximately one year ago, Westlaw submitted a proposal that if North
Dakota judges would post their opinions on Westlaw, then all North Dakota judges would have
access to that database. The Council supported the recommendation. Ms. Holewa has since been
in contact with the Westlaw representative, and he has been unable to get approval from
headquarters, so she is officially declaring the offer dead.
Judicial Improvement Program Sally Holewa informed the Council that the Judicial Improvement surveys would be sent out in
May. After the survey is completed, it will be sent to the Bureau of Governmental Affairs at the
University of North Dakota to compile the information. The information will be reviewed with
judges in June.
The next meeting will be held on May 14, 2010. The meeting adjourned.