Present: Chief Justice Gerald W. VandeWalle, Chair Justice Daniel Crothers Judge Sonna Anderson for Judge Hagerty Judge Laurie Fontaine Judge Donovan Foughty Judge John Greenwood Jim Hill Judge Steven McCullough for Judge Dawson Judge William McLees Judge Joel Medd Judge John Paulson Judge Allan Schmalenberger Judge Robert Wefald
Absent: Judge Georgia Dawson Judge Gail Hagerty
Staff: Sally Holewa Louis Hentzen
Others Present: Dennis Herbeck Rod Olson Donna Wunderlich
Minutes It was moved by Judge Medd and seconded by Justice Crothers to approve the minutes
from the March 13, 2009 meeting, with clerical corrections as noted.
Juvenile Drug Court Chief Justice VandeWalle said that in addition to the letter included in the packet, he had received
an e-mail from Justice Maring with additional information. The e-mail clarified that caseload is
currently not being used as a factor in case assignment in either adult or juvenile drug court.
Donna Wunderlich said that the SCJD does not consider either drug court when assigning judicial
workload. She said that the judges were of the opinion that the assignment should be a reflection
of personal commitment and did not think it was necessary to include it in the formal workload
assignment. Judge McLees said he had spoken with Judge Mattson and he did not want any
special consideration given for drug court. Judge McCullough said he had not spoken with Judge
Webb but as far as he and Judge Irby were concerned, they did not think that any special
consideration should be used for the drug court assignments. He suggested that the decision on
how to factor drug court into the caseload assignment should be left up to each district since the
rotations are each set differently. Judge Foughty agreed as long as the drug courts are included in
the weighted caseload study. Chief Justice VandeWalle confirmed that they were. Judge Medd
said he agreed with Judge McCullough that the decision on how to factor in drug court should be
left to each district because in his district, they balance it against other judicial duties such as how
involved someone is in committees or similar activities. Chief Justice VandeWalle expressed
concern that there were some underlying issue that prompted Justice Maring and the Juvenile
Drug Court Advisory Committee to send the letter. The presiding judges confirmed that they
were unaware of any issue within their district. Judge Schmalenberger suggested that most
judges will let you know if they feel the caseload is not balanced. The Chief Justice asked that
each presiding judge discuss this issue at their next district meeting.
Trial Court Orders on Westlaw Sally Holewa explained that she had been contacted by Westlaw to discuss the idea of North
Dakota judges submitting orders directly to Westlaw. Currently, they collect orders by scanning
the North Dakota supreme court docket and news stories from North Dakota and then send their
staff to the courthouses to purchase the documents they want. These documents are then put into
a database and they sell access to the database. They are proposing that if all North Dakota
judges agree to submit orders, then Westlaw would give free access to the database to all North
Dakota judges and law clerks. Judge McCullough said he has been doing this voluntarily and
thought it was a good idea if all would do the same. Judge Schmalenberger said Justice
Sandstrom told him that if the judges are interested in this service then Ted Smith is willing to put
these orders on our website to make them accessible to lawyers without cost. Judge Medd
questioned the need to create something new if a repository already exists. Justice Crothers asked
if the new case management system would have an impact on accessibility. Judge
Schmalenberger said the images would be available but the attorney would need to know what
cases to look at. The new case management system would not be searchable like a database
would be. Judge McCullough said one benefit to the service is that it is likely that it would lead
to more district court case being cited by attorneys. Chief Justice VandeWalle questioned how
orders would be searched if put on our website. Judge McCullough said he believed our current
search using Boolean logic would ensure that the orders would be searchable. Chief Justice
VandeWalle commented that Westlaw has a history of using the intellectual property of the courts
to make a profit, and there is really nothing to stop that but it will be interesting to see what kind
of a market they have for this new venture. It was moved by Judge Medd, seconded by Judge McCullough, that the Administrative
Council support a recommendation that trial court judges voluntarily agree to furnish trial
court decisions to Westlaw and to our web page conditioned upon Westlaw giving free
access to their North Dakota trial court order database to North Dakota judges. Motion
carried.
Task Force on Court Reporters Sally Holewa introduced the topic of the task force by explaining that Judge Geiger's letter was
prompted by a request to raise court reporter salaries. A request was submitted to the Personnel
Policy Board to raise the salary from grade 12 to grade 14. In researching that request, the court's
Director of Human Resources, Amy Klein, found that there were issues other than salaries that
impacted North Dakota's ability to attract court reporters. She spoke with Minnesota, Wisconsin,
and South Dakota and those states had all established a task force to address those other factors.
The supreme court reviewed the recommendations of the Personnel Policy Board and agreed to
bring the issue of a task force to the Administrative Council.
Chief Justice VandeWalle said that about a year ago, he had a call from the Chief Justice of South
Dakota asking if North Dakota would support their effort to start a court reporter school in South
Dakota. Chief Justice VandeWalle said we would support the idea but could not commit to hiring
any certain number of court reporters. Justice Crothers said the court wanted to get a sense of
what the trial court wants in regard to court reporters. Donna Wunderlich said the SCJD wants
court reporters. Judge Medd said the NECJD prefers court reporters and has been successful in
recruiting them. Judge McCullough and Judge Paulson said they prefer court reporters but have
not been successful in attracting them. Rod Olson said the nearest court reporter school is Anoka
Community College. When he contacted them recently, he was told they have 22 graduates this
year but 18 have already been hired to do close-captioning for television. Chief Justice
VandeWalle said an issue raised by the legislature was cross-training of court reporters and
deputy clerks. Donna Wunderlich said some court reporters do assist in the clerk's office. Judge
Paulson said it was the opposite in the SEJD. He said clerks were trained to pinch hit for court
recorders but recorders and reporters do not assist with clerk duties. Judge Fontaine said her
experience is solely with court recorders. She said she does not have the background to formulate
a strong opinion about court reporters. She recently had the choice between hiring a recorder and
a reporter and chose the recorder after talking to other judges about their experience with
reporters. She said the court should give court recorders better initial training and periodic re-training. It was moved by Judge Fontaine, seconded by Judge Paulson, that the court
establish a task force on court reporters. Motion carried.
Chief Justice VandeWalle then asked for suggestions for the composition of the task force.
Donna Wunderlich asked to be involved since the SCJD has a strong preference for reporters.
Judge Paulson suggested a court reporter. Judge Medd suggested the president of the Court
Reporters Association or the president's designee. Chief Justice VandeWalle suggested a lawyer
be appointed to represent the perspective of the bar. Jim Hill said he would ask the SBAND
Board of Governors to send a list of names for the Chief to choose from. Judge Anderson
suggested that Emineth or another freelance firm be included because anything we do to increase
interest in the profession or bring more reporters to the state would be of interest to them. Judge
McCullough suggested someone from the Judicial Education Commission would bring a neutral
perspective. Sally Holewa said Amy Klein would be assigned to staff the task force since she had
already done much of the research. She suggested that Louis Hentzen be added to the task force
as a member, not staff, based on his extensive experience with this issue. The Chief said a judge
should be assigned. As there were no volunteers from the Administrative Council, he will
develop a list of potential appointees and circulate it to the Administrative Council for comment.
Louis Hentzen said in his experience, the issues of certification and payment for transcripts would
be two things the task force will need to address. The Chief Justice said the issue of transcript
payment would have ramifications if things changed because the legislature would have a hard
time accepting that court reporters couldn't assist the clerk's office because they were too busy
working on paid transcripts. Chief Justice VandeWalle said a likely duty of the task force would
be approaching the schools to see if they have any interest in starting a court reporter program in
North Dakota. Donna Wunderlich said the Court Reporter Association has already engaged in
these discussions and have not had any luck in raising the interest of the schools. She said Lake
Region did not think there was enough market in North Dakota to justify investing in a program.
Rod Olson said the likeliest school would be Wahpeton and suggested they be included on the
task force.
Chief Justice VandeWalle said it was important that court reporters understand that the task force
was charged with an affirmative task, and it was not formed with the intent of eliminating court
reporters. Sally Holewa added that it was equally important that court recorders understand that it
was also not the intent of the court to eliminate them. The Chief said the statement of purpose
would need to be more specific than what was laid out in Judge Geiger's letter.
Task Force on Racial and Ethnic Fairness Chief Justice VandeWalle said that we will need to hire staff for the task force on racial and
ethnic fairness. It will be a big job, and we will be short staffed with Mike Hagburg's
deployment to Kosovo later this year. Judge Foughty said he had reports from Pennsylvania and
Nebraska. He said we are one of the few states that has not completed our race and ethnic studies
so there are lots of resources for background research. He will put together an outline on
methodology and forward it to the Chief Justice for the task force. The Chief said we could do a
Delphi study, but it was more important to go through the steps to raise awareness of the issues.
He said the charge for the task force will need to be carefully defined since he's already been
contacted by some groups who are looking to the court to study discrimination issues throughout
the criminal justice system. Judge Foughty agreed. He said a lot of the other studies have looked
at alternatives to incarceration. The Chief said we do not have the resources for that. He said we
are not ready to move on this yet but wanted to be sure everyone is aware of it.
Parenting Act Chief Justice VandeWalle said there were significant changes to the parenting act this legislative
session, and he is concerned that we get up to speed as soon as possible on the changes. He asked
that each presiding judge discuss the changes at their next district judges meetings. Judge Medd
said they had discussed it only briefly. Judge McLees said Cathy Ferderer had been to their
meeting last week and shared information with them. Judge McCullough asked if she was going
to come to each district. Sally Holewa said that Lee Ann Barnhardt was working with an
SBAND task force on a program for judicial education to be delivered at the June Judicial
Conference and the SBAND Annual Meeting but the concern is that very few judges attend that
meeting. The Chief reiterated that training would need to go to each district. Sally Holewa said
Cathy Ferderer would be available to assist where needed. She said Cathy has done extensive
research on parenting plans and parenting coordinator programs. The goal is to get the parenting
coordinator program up and running by the end of August in order to have some data for the
mandatory evaluation we'll need for the next legislative session. She emphasized that the
provisions related to parenting plans goes into effect on August 1, 2009, and we needed to be
prepared to move forward with that, as well as the language changes.
There being no further business, it was moved by Judge Paulson, seconded by Jim Hill, that
the meeting adjourn. Motion carried.