(Unofficial until approved) UND School of Law, Grand Forks May 23, 2011
Present: Chief Justice Gerald W. VandeWalle, Chair Judge Sonja Clapp Judge Gail Hagerty Judge Laurie Fontaine Judge Donovan Foughty Judge John Paulson Judge William Herauf Maureen Holman Justice Daniel Crothers Judge Steven Marquart for Judge McCullough Judge William McLees Judge Frank Racek Judge Bruce Romanick
Absent: Judge Steven McCullough
Staff: Louis Hentzen Sally Holewa
Others Present: Dennis Herbeck Donna Wunderlich
Minutes: Sally Holewa
Chief Justice Gerald VandeWalle called the meeting to order at 4:20 p.m. and welcomed Judge
Romanick as a new member to the Council.
Minutes It was moved by Judge Romanick, seconded by Judge Herauf, to approve the November 5,
2010 minutes.The motion carried.
Transfer of Municipal Court Cases Sally Holewa explained that N.D.C.C. § 40-18-15.1 has been amended to require the remand of
transferred municipal court cases back to municipal court if a defendant waives a jury trial,
unless the prosecutor and defendant agree to retain the case in the district court. She asked that
the Administrative Council consider the issue and reach a consensus of how the court should
handle these cases if the waiver is part of a plea agreement.
Judge Herauf said that he believes that most plea agreements will include an agreement to retain
the case in district court because the municipal court would not have to accept the agreement.
Judge Nelson said he does not believe the amendment will have any impact because it follows
what they have already been doing in Williston. He said he immediately remands the case as
soon as he gets a waiver of trial, without taking any action on the underlying plea agreement.
This has been working well, and he does not anticipate any change in practice.
Chief Justice VandeWalle said he would ask Jim Ganje to review the legislative history, but he
believes the change is the result of the situation in Fargo where attorneys do not want to have
cases heard by a municipal court judge. Judge Paulson said that attorneys will continue to move
cases to district court any place where a municipal court has the reputation of being tough. Judge
Clapp provided an example from Grand Forks where the district court and municipal court have
Judge Racek suggested that if a plea agreement is reached, then the parties should agree to stay in
district court throughout the case.
Judge Foughty raised a concern that there might be more instances of the parties settling on the
day of trial rather than waiving ahead of time and having the case remanded to municipal court.
After discussion, it was the consensus of the Council that no further action should be taken by the
district court once a waiver of jury trial is entered unless the waiver is conditioned on a plea
agreement that includes an agreement to leave the case with the district court.
Five-State Caseflow Management Seminar Sally Holewa stated that there will be a Five-State Caseflow Management seminar held in Post
Falls, Idaho, August 17-19, 2011. She reviewed the charts on cases beyond docket currency
standards and explained that the dip in overdue cases from Fall 2008 through Fall 2009 was
attributable to improvements in the way the NWJD and the SEJD were handling cases. Since
then, there has been an increase in the number of cases beyond standards in all districts and in
most case types. She explained that in her regular review of the docket currency reports, it was
noted that the newer judges are not following good case management practices. She cited
examples of multiple continuances of trials and multiple pre-trials rather than the court actually
setting a trial date. She said that she has also identified some specific issues in some districts and
has referred those issues to the trial court administrators.
She said that there has been no caseflow management training in the state since the early 1990s,
and she would like to see all districts participate in the seminar. She asked that either the
presiding judge or their designee attend the conference, as well as the trial court administrator or
Law Clerk Employment Status Sally Holewa explained that the technology coordinators are the positions that provide the
technical support for the Odyssey case management and e-filing systems. She said the original
request to the legislature was to create these as regular full-time equivalency positions, however,
the legislature only authorized temporary positions. She said that a decision was made to
continue them as temporary positions this biennium rather than asking to convert them to regular
FTE positions and risk having the positions stripped from the judiciary. This decision was
communicated to the technology coordinators prior to the legislative session and resulted in one
coordinator leaving. Around the same time, another coordinator resigned due to health issues.
Last week another coordinator resigned, and we were informed that our most experienced
coordinator had interviewed for a position with another state agency and was actively seeking
regular employment. She said that transferring four law clerk positions from regular FTEs to
full-time temporary positions and reassigning the technology coordinators to these positions
would help stem the turnover.
Judge Hagerty explained that she was opposed to the request because of the timing, the disparity
it would create between the law clerk positions, and the risk of losing the positions if they were
changed to temporary positions. She said that the timing of the change would cause us to lose
credibility with the legislature and hurt our requests for FTEs in the future. She said that she was
not comfortable with hiring two equally qualified people for a position at the same time and
having one paid less than the other.
Chief Justice VandeWalle stated that he did not agree that the salaries were different, only the
benefits were different. He said that since the law clerks do not stay long enough to be vested,
the retirement benefit is really none existent unless the law clerk eventually went to work for the
state. He agreed that in that circumstance, there would be a loss of benefit.
Judge Racek said that there would be a 4% difference in pay because the law clerk in the FTE
position would be entitled to a payout of the state’s contribution on their behalf during their time
of employment. He said it is unfair to ask the ECJD and SCJD to give up staff when they are
Sally Holewa reiterated that under the proposal, the benefits for future law clerks would change
but the positions would continue to be filled and the law clerks would still be working the same
number of hours.
Judge Racek said that he was opposed to the reassignment because there was an increased risk of
losing the positions if the state were to suffer a financial setback. He said he agreed with the
statement of the problem but not the proposed solution. He reviewed a chart showing the ratio of
service delivery per district and position to population and suggested that the solution is to
reassign resources to the ECJD and SCJD to equalize the ratios statewide.
Judge Foughty said that there is merit in looking at population, but we also needed to look at
caseload numbers. He said the units have provided greater flexibility for addressing staffing
issues. He said that the Northeast judges are busy but the system as a whole needs to go down
the road of improving process.
Judge Racek said that using caseload numbers only reflects what we currently do. He said it
exempts people from having to deal with reality when we include measures such as caseload and
mileage. He said the need is in Bismarck and Fargo, and the resources need to be assigned to
those areas. He said that we need to determine what we are doing that is not statutorily required
and eliminate it. We need to determine what can be centralized and what is deadwood and then
decide what we want to spend our money on.
Judge Paulson said that we need to look at how we can reassign duties if the duties of a position
is less than 50% of an FTE but we also need to ensure that we have adequate staff coverage. He
said that the counties are better at recognizing the need to cover for vacations and sick leave.
They often give us more staff than we pay for so we get the better end of the deal.
It was moved by Judge Hagerty, seconded by Judge Racek, that the Administrative Council
stand opposed to any law clerk position being reassigned from a regular full-time
equivalency position to a temporary full-time position. The motion carried.
In response to a question from Justice Crothers, Judge Racek said that revamping administrative
processes was not something that Judicial Planning Commission is equipped to deal with. He
explained that there were too many lay people, and it would take too much time to explain the
nuances of procedures if the issues were referred to Judicial Planning. He suggested that we
contract for a study to review our procedures.
Chief Justice VandeWalle said that the National Center for State Courts was currently working
on similar projects in several states and had probably developed other measurements besides
caseload studies to assist those states in reorganizing.
Sally Holewa said that population is one way to determine resource needs but should be used in
conjunction with the weighted caseload and workload studies. She said population is only a
rough number about the general population while our weighted caseload and workload studies
are based on what is actually coming into the court and what courts actually do. She said the
National Center for State Courts is using a “staffing to the lowest norm” model that uses a time
standard for discrete tasks as a basis against which all offices are compared. Staff positions in
those offices that do not meet the lowest norm are reassigned to other offices that are meeting the
standard. Chief Justice VandeWalle commented that the courts using this measurement are in a
much different position than North Dakota because they are being forced to change due to budget
Judge Racek said addressing child support alerts does not contribute to anything and should be
eliminated. In response to a question from Chief Justice VandeWalle, he said he was not
advocating that the child support process be moved to the executive branch, but he was also not
opposed to the idea. Judge Foughty said that 15 years ago, we were talking about consolidating
traffic ticket processing, and it should be looked at again.
Judge Racek suggested that the judges and court administrators from each district work together
to devise a proposal for a study of court processes.
Sally Holewa said that she met with the court administrators a year ago last August, and they
went through 7 to 10 areas in which consolidating tasks might make sense. She said that it is
predicated on using contract clerks to do the tasks to free up state employee time rather than
having state offices specialize in particular tasks. In response to a question from Donna
Wunderlich, she said that there is no issue with clerks working on cases outside their districts
because venue is related to where cases are decided and not where the clerical work is handled.
It was moved by Judge Racek, seconded by Judge Herauf, that the State Court
Administrator circulate her notes from the re-engineering meeting to the members of the
Administrative Council; that the State Court Administrator schedule a video conference
between the presiding judge to discuss the notes; and that the presiding judges provide any
additional suggestions to the Administrative Council in time for their next meeting. The
Salary Increases for 2011-2013 Biennium Sally Holewa explained that if the Supreme Court adopts the salary increases authorized by the
legislature for the biennium, then on July 1, 2011 salaries would increase by 3%. Because the
legislature also passed a bill requiring a 1% employee salary redirection toward the pension plan,
employee take-home pay would be reduced by 1% on January 1, 2012. On July 1, 2012, salaries
would again rise by 3%, but there would be another 1% salary redirection occurring again on
January 1, 2013. She said the plan is to send a notice to all employees in July when the increase
takes effect and a reminder in December before the lower take-home pay goes into effect.
Chief Justice VandeWalle stated that it is important that the rank and file understand what is
happening with their salaries and that the redirection of salary is to shore up the pension fund.
In response to a question, Judge Racek said that the January date of the salary redirection is due
to the fact that the political subdivisions operate on a calendar year and would not have had the
available funds to comply with changes made to the plan. Chief Justice VandeWalle said that
although it would have been possible to make the change effective July 1 for the judges’
retirement plan, all other court employees are part of the main pension plan so would still be
subject to the January 1 schedule. He added that ultimately he believes we will see employees
end up with different retirement benefits. Based on what he sees happening around the United
States and in the last legislative session, he believes that within a few years, the legislature will
close out the defined benefit plan and all new hires will be forced into a defined contribution
The next meeting is scheduled for August 26, 2011.