November 5, 2010
Chief Justice Gerald W. VandeWalle, Chair
Judge Sonna Anderson for Judge Hagerty
Judge Laurie Fontaine
Judge Donovan Foughty
Judge John Paulson (telephonically)
Judge William Herauf
Justice Carol Ronning Kapsner for Justice Crothers
Judge Steven McCullough
Judge William McLees
Judge Joel Medd for Judge Clapp
Judge Frank Racek
Judge Robert Wefald
Judge Sonja Clapp
Justice Daniel Crothers
Judge Gail Hagerty
Chief Justice Gerald VandeWalle called the meeting to order at 10:00 a.m.
It was moved by Judge Wefald, seconded by Judge McLees, to approve the August 27, 2010 minutes. The motion carried.
Proposed Policy on Preparation of Transcripts After Separation from Employment or Incapacitation of Court Reporter
At the August Administrative Council meeting, the Council tabled discussion of the policy to allow Ms. Holewa to obtain additional input from court reporters on the policy. Ms. Holewa said she worked with the Grand Forks court reporters and the Court Reporter's Association to put together the original proposal, which was to upload court reporter dictionaries to the network drive. This would allow another court reporter to access that dictionary when a transcript is needed in the event a court reporter is incapacitated or unwilling to work for whatever reason. After the original proposal, it was suggested Ms. Holewa poll the court reporters concerning uploading their translated notes in lieu of uploading their dictionary. Of the eight responses received, six were in favor of uploading their notes because they already do it on a regular basis. Because dictionaries change over time, it would be more difficult go back to the dictionary at a later date to translate the notes. Ms. Holewa said since the purpose in drafting the policy is to address those situations when a court reporter is no longer available to prepare a transcript and since the majority of the court reporters who responded indicated that uploading their translated notes is done on a regular basis, she distributed an alternate proposal for the Council's consideration.
Judge Racek stated typically a court reporter will enter abbreviations in their dictionary which are unique to a particular case. If you download the dictionary a couple years later, those abbreviations may no longer be in the dictionary.
Judge Paulson stated it would be important to consider the time frame involved in uploading notes. He suggested it may be beneficial to upload both the dictionary and the notes.
It was moved by Judge Medd, seconded by Judge Wefald, to adopt the alternate policy regarding the translated notes.
Judge Medd recalled the policy suggests the court reporter upload the translated notes at the end of the day or as soon thereafter as possible. He said another advantage of uploading the notes is you have a rough draft of the transcript and the translated notes to assist the judge in making a decision. He suggested the alternate policy is the better policy.
In response to a question from Judge Paulson asking how long it would take to upload a day's work, Ms. Holewa responded Rhonda Colby estimated that it would take 10 to 15 minutes per day or an hour to do a week's worth at one time.
Judge Anderson said one of the concerns raised was with security and the fact that the translated notes were only a rough draft and should not be used or considered as a transcript. Ms. Holewa responded the translated notes are private because they are posted to the U drive and only the completed transcript will be posted on Odyssey.
Chief Justice VandeWalle stated the policy only comes into play when the court reporter is unavailable either through death, illness or some other cause. A rough draft is better than no transcript at all. If something is missing, under the rules, the parties would need to work with the trial judge to supplement the record.
The motion carried to approve the alternate policy regarding the translated notes.
Review of the Limited English Proficiency Plan
Judge McCullough stated after reviewing the materials, he noticed there was discussion at the last meeting concerning the budgetary impact of the policy. However, he is still concerned about providing interpreters for the state and their witnesses in criminal cases, especially if they want interpreters for their individual dialects, which can become very costly.
Rod Olson said if an interpreter is brought in for court and the defense counsel needs to ask a few questions, they use our interpreter, otherwise the court splits the cost with the public defender. Judge Racek said in addition to the monetary problem, the court is not always aware that the state's witness does not speak the language and some of the interpreters are hard to schedule and require a lot of advance notice. Chief Justice VandeWalle stated that the interpreter is for the court; however, the U.S. Attorney General's Office is researching the issue nationwide. The Conference of Chief Justices has formed a subcommittee to discuss the constitutional issues regarding the courts' duty to provide interpreters for people using the courts.
Judge Paulson stated his concern is that the record is protected in case of audit, and it is important to have some acknowledgment from the interpreter and the party that everything has been understood and interpreted correctly. He notes this is especially important in a long proceeding.
Mr. Olson said when a case is continued, the court notifies the interpreter. However, other agencies are not as compliant. Many interpreters show up for cases that are no longer on the calendar, and it can be frustrating if the court is expected to pay those bills for those interpreters. It was suggested that if a party has been notified that a case has been canceled and they have neglected to notify the interpreter, the party will be responsible to pay for the costs.
In response to a question asking if anyone has used the AT&T telephone service, Mr. Olson responded his unit only uses them as a last resort because the quality of the interpreters varies greatly. He also stated the National Center did a study and found that most people prefer the interpreter in the courtroom rather than over the phone.
Judge Fontaine requested a list of interpreters be sent out to the units. Chief Justice VandeWalle asked Ms. Holewa to work with the trial court administrators to develop a list of interpreters and send it out to the units. It is not the intent of the list to qualify the interpreters but only to provide the location of interpreters in the area.
It was noted that the Finance Department is tracking the costs.
Appointment to Personnel Policy Board
Chief Justice VandeWalle noted that Judge M. Richard Geiger's term on the Personnel Policy Board expires on December 31, 2010. Judge Doug Mattson and Judge Lisa McEvers have both expressed interest in serving on the Board. This is an appointment made by the Administrative Council to begin effective January 1, 2011.
Judge McCullough strongly suggested appointing Judge McEvers to the Board because she has held many different positions within the Court System and her tenure as a commissioner at the Department of Labor all seem to be a good fit.
Judge McCullough nominated Judge McEvers to serve on the Personnel Policy Board. It was seconded by Judge Racek.
Judge McLees nominated Judge Mattson to serve on the Personnel Policy Board. It was seconded by Judge Herauf.
By a show of hands, Judge McEvers was elected to the Personnel Policy Board.
Judge Paulson suggested Ms. Holewa write a letter to Judge Geiger on behalf of the Administrative Council expressing the Council's gratitude for his dedicated work as chair of the Personnel Policy Board. Judge Paulson indicated his term on the Board will also expire in December.
Pre-Sentence Investigation Work Group
Sally Holewa stated last fall, the Court requested technical assistance from the American University to review the utilization of pre-sentence investigations (PSI) in North Dakota with the intent of determining how the PSI report can be improved as a tool for judges. Based on the Technical Assistance Report provided by the American University, one of the recommendations is to form a working group with the Department of Corrections and Rehabilitation (DOCR) to improve PSI reports.
Judge Medd stated he was one of the judges who was interviewed. Grand Forks orders a PSI report on all felony cases. He said there is a lot of inconsistency, and the reports are too lengthy and too detailed. He would support establishing a working group of judges and DOCR staff to develop a format suitable for everyone. Judge Paulson added he too was part of the discussion and noted waiting two months to sentence someone is too long.
Judge Foughty expressed his preference for a short and concise standardized outline. He said he favors the reports that come from a probation officer; however, some reports are outsourced to other people that are not in the field so the reports become irrelevant in many areas. He also noted it would be helpful to receive some interpretation on criminal records from other states.
Judge Racek said currently the report mimics what the state's attorney is recommending, and there is nothing to state what the recommendation is based on or what purpose the sentence is addressing or what options are available. He said when he sentences someone, it would be helpful to know what programs are available and the number of months it will take to complete the program.
Judge Paulson agreed probation is in the best position to determine what type of treatment is needed. If defendants would all go through the same type of screening process, DOCR would be able to determine what type of treatment is needed.
Judge McLees said he is in agreement with Judge Racek in that we are lacking evidence-based sentencing recommendations. He said he spoke with someone at DOCR, and they are aware of the concern and are working toward developing evidence based sentencing recommendations.
Chief Justice VandeWalle said he would like to see a representative from the county included in the workgroup. Judge Racek suggested a sheriff or jail administrator and someone from human services would be beneficial.
Judge Foughty noted while he has had some very positive things from the DOCR in the last year, it would be beneficial, particularly in his district, if DOCR could hold defendants locally for 90 days to connect them into the local system, which would result in fewer people being sentenced to the penitentiary.
It was the consensus of the Council to appoint one judge from each of the units as follows: Judge Medd (Unit 1), Judge Racek (Unit 2), Judge Lee (Unit 4), and Judge Anderson will speak with Judge Hagerty about a representative from Unit 3. Ms. Holewa will contact the Association of Counties and DOCR for representatives. The State Court Administrator Office will staff the workgroup.
The next meeting is scheduled for January 14, 2011.