Administrative Council Doublewood Inn, Bismarck September 10, 2008
Present: Chief Justice Gerald W. VandeWalle, Chair Justice Daniel Crothers Judge Laurie Fontaine Judge Donovan Foughty Judge John Greenwood Judge Gail Hagerty Judge John Irby for Judge Georgia Dawson Judge William McLees Judge Joel Medd William Neumann for Jim Hill Judge John Paulson Judge Allan Schmalenberger Judge Robert Wefald
Absent: Judge Georgia Dawson Jim Hill
Staff: Sally Holewa Louis Hentzen
Others Present: Jim Ganje Dennis Herbeck Rod Olson Don Wolf Donna Wunderlich
Minutes: Renee Barnaby
Chief Justice Gerald VandeWalle called the meeting to order at 1:30 p.m.
It was moved by Judge Wefald, seconded by William Neumann, to approve the minutes of
May 30, 2008 meeting. The motion carried.
Administrative Council Election Results Sally Holewa announced that Judges Wefald and Fontaine were reelected to serve Units 3 and 1,
respectively, on the Administrative Council. Each will serve a three-year term.
Judgeships, Referees, and Law Clerks Chief Justice VandeWalle said the issue of judgeship, referee and law clerk requests for the
2009-2011 biennium was discussed at the last Administrative Council meeting and at the June
Judicial Conference and is now before the Council again today.
It was noted a request for a law clerk in the South Central Judicial District was approved at the
last Administrative Council meeting.
Judges McLees and Greenwood stated the need for judges in their respective districts.
Judge Irby suggested it would be helpful to have an additional law clerk in Cass County.
Judge Wefald suggested the need to redistrict or change the district boundaries.
It was suggested that if redistricting is considered, it be looked at from a broader context starting
with the units and election districts.
Chief Justice VandeWalle said as a practical matter under our rules, we do not have enough time
to do a redistricting with notice and hearings in time for this next legislative session.
After further discussion, it was moved by Judge Wefald, seconded by Judged Hagerty, that
over the next biennium a subcommittee to the Administrative Council study the units,
districts and judge locations.
Chief Justice VandeWalle said that Justice Kapsner is reorganizing the Judicial Planning
Committee and this may be an appropriate subject for them because it is broad based.
Judge Foughty suggested the topic be studied by the Judicial Planning Committee.
A substitute motion was made by Judge Wefald, seconded by Judge Hagerty, to refer the
issue of studying districts, units and judge locations to the Judicial Planning Committee.
The motion carried.
It was moved by Judge Wefald, seconded by Judge Paulson, that the Administrative
Council support the request for two additional judgeships, one for the Northwest Judicial
District and one for the Southeast Judicial District. The motion carried.
Judge Hagerty suggested that during the next biennium, a study be conducted to develop a
formula for law clerks.
It was moved by Judge Irby, seconded by Judge McLees, that the Administrative Council
support a request for a law clerk in the East Central Judicial District. The motion carried.
Request for Additional Technology Coordinator Positions Sally Holewa said after careful study and consideration, we are in the process of contracting with
Tyler Technologies to purchase the Odyssey system. The new system requires dedicated staff to
train all court staff, judges and outside users who currently access UCIS through the data
warehouse. There is also a need for continual testing and training of the new system. The
Odyssey system is only five years old and is shared by several other users, unlike UCIS which
was exclusive to North Dakota. Tyler releases monthly patches, quarterly updates and a
mandatory annual upgrade. Additionally, as other users add new functions, our staff will need to
examine them and determine if there are changes that will enhance our current procedures.
Training materials also need to be developed and disseminated to support all changes and
enhancements. After speaking with other states who have implemented the Tyler system, Ms.
Holewa is concerned about our lack of technology coordinators. Since the duties of the
technology coordinators will be ongoing, Ms. Holewa is recommending that we add a total of
four additional technology coordinators to our IT staff.
It was moved by Judge Schmalenberger, seconded by Judge Paulson, to support the
proposal for additional FTEs.
Judges Schmalenberger and Medd stressed the importance of having enough support staff to
implement the project.
In response to a question from Judge Wefald as to why we cannot contract with Tyler to hire the
employees, Ms. Holewa said there are a couple of reasons. First, even though the core product is
the same, each entity obtaining the product has their own customizations, which are separate.
Plus our network and infrastructure will have to be tested to make sure it works. Secondly, we
have to determine if the functionality that Tyler is adding or changing works with our business
practices and whether or not the changes should be incorporated. We also need to develop
training manuals or training sessions for employees. It is a continual process because the
upgrades are continual.
Judge Fontaine commented that to make the system effective, it is necessary to have the people
to implement it.
Louie Hentzen noted the Kansas judicial system went through a similar process and additional
staff were needed in the state court administrative office for this very reason.
Following further discussion, the motion carried.
Airline Fees Sally Holewa said recently there have been requests for information regarding miscellaneous
airline expenses such as luggage fees. It is OMB's policy to include luggage fees on an expense
voucher as part of the cost of the ticket, however they will not pay for overweight luggage. If the
fiscal department notes something excessive, it will be flagged and brought to our attention.
District Court Budget Sally Holewa said an updated budget was included in the meeting materials. She said salaries
and wages are listed at $42 million however that is based upon the 07-09 salaries. Don Wolf is
working on the figures for the 09-11 pay plan which will include the additional 11 FTEs we are
Don Wolf said overall, we are asking for $58 million, not counting the UCIS money and salary
increases. However, when you adjust for the UCIS replacement and ERMS from the previous
biennium, it is about a 1% increase overall from the previous biennium. UCIS replacement will
be over $6 million, and the salaries for the new FTE requests will be $1.5 million, not counting
the step increases and the pay plan adjustments depending upon what is approved by the
Ms. Holewa said the costs for the new judgeships and their support staff will be submitted as a
separate bill. It was moved by Judge Wefald, seconded by Judge Paulson, that the district court budget
be submitted to the Supreme Court for consideration.
It was noted that the total FTEs being requested is 9 rather than 11. The motion carried.
Public Administrators Chief Justice VandeWalle said the issue of public administrators was on the agenda for
discussion purposes only. There is little uniformity on how public administrators are appointed
and paid or what qualifications they hold. He noted at least one county has resisted paying for
Judge Medd said the public administrator in Grand Forks recently retired. The County
Commission proposed that the veteran services officer serve as the public administrator. The
public administrator will work with the director of social services to assist in getting people the
help they need. The public administrator will be paid a salary of approximately $15,000.
Chief Justice VandeWalle suggested a study be done on elder care issues and, in particular, the
It was moved by Judge Medd, second by Judge McLees, to ask the legislature to conduct a
study of elder care issues.
Judge Hagerty stated the Uniform Adult Guardianship and Protective Services Act will be
reviewed during the next session, however it will not cover the issue of costs.
The motion carried.
Firearms Notice/Advisory and Firearms Surrender Forms Jim Ganje said last year, the Administrative Council referred the firearms notice/advisory issue
to the Committee on Trial Court Operations. The Committee reviewed the issues related to
information required to be provided to criminal defendants concerning limitation on the
possession of firearms in crimes involving violence. The notice is imposed by federal law as a
condition for continued access to federal grant funds. The Committee's first recommendation is
that judges include the following in their advisory to the criminal defendant in all felony and
misdemeanor cases: "If you are convicted of certain crimes involving violence it may be
unlawful under federal law for you to possess or purchase a firearm. This includes a rifle, pistol,
or revolver, and ammunition. This applies if you are or were a spouse, intimate partner, parent or
guardian of the victim or where involved in another similar relationship with the victim. 18
The Committee's second recommendation requests a new condition code be created in UCIS that
causes the general language to print in the criminal judgment.
Judge Fontaine said it was discussed at the last Judicial Conference that judges were to add a
general statement to the advisement of rights. She suggested it may be difficult to add the
advisement code to UCIS.
Judge Schmalenberger suggested the language be added to every judgment.
Judge Hagerty said adding too much information into the judgment draws away from its
importance. She inquired who would answer questions if the defendant did not have counsel.
Judge Irby suggested it be covered in the initial rights that are read to the defendant.
Judge Schmalenberger said they added the language to the advisement form given to the
defendants. The defendants are required to sign the form.
Judge Paulson said he advises the defendants that the federal law may permanently bar them but
its up to them to check with the ATF to determine whether or not you can have a firearm.
It was moved by Judge Fontaine, seconded by Judge Medd, that we advise all judges that
the contents in paragraph 1 be included in the rights as provided to all criminal defendants
that would be subject to it. The motion carried.
Judge Irby suggested the amendment be given to Judge Geiger to be included in the benchbook.
The Council took no action on recommendation number 2.
Firearm Surrender Form Jim Ganje said the Committee on Trial Court Operations reviewed the firearms surrender forms
created by Judge Kleven. The Committee recommended that the forms, in generic format, be
made available to judges for their optional use in conjunction with local law enforcement.
It was moved by Judge Schmalenberger, seconded by Judge Wefald, to send the forms to
all the judges for their use if they deem appropriate. After brief discussion, the motion
Recommended Revisions to Clerk of Court Manual Jim Ganje said the Committee on Trial Court Operations is responsible for periodically
reviewing the Clerk of Court Manual for updates and revisions. The Committee submitted its
proposed changes to the Council for review. Most of the changes are minor and are included to
It was moved by Judge Wefald, seconded by Judge Medd, to recommend the changes be
approved. The motion carried.
Domestic Violence Protection Order and Petition Forms Jim Ganje stated, as requested by the Administrative Council, the Committee on Trial Court
Operations reviewed the current domestic violence forms to address any changes in the federal
law requirements with respect to the firearms limitations. The Committee is also proposing
changes to make the forms more user-friendly. Area domestic violence advocates and
representatives of the North Dakota Council on Abused Women's Services and law enforcement
assisted in the review of the forms. Mr. Ganje further explained that one common feature in all
of the forms are boxes. Those boxes are intended to indicate provisions that if selected by the
court, would appear in the final judgment. This would eliminate useless provisions in the order.
Judge Wefald said the proposed changes are a dramatic improvement over the current forms;
however, on page 45, line 5, where it states a petitioner may remove personal belongings from
the petitioner's residence, he suggested the language state the petitioner may remove personal
belongings from the respondent's residence. He said if a petitioner is living with the respondent
and the petitioner moves to a safehouse, the petitioner need to be able to access his or her
Mr. Ganje agreed that if a residence is not restricted as to the petitioner, then you ought to have a
provision that says that petitioner can get back into the residence which isn't restricted as to the
petitioner and to get law enforcement's cooperation to do that.
Sally Holewa stated we only have two programmers who work with UCIS. If the Council
approves the changes to the forms and changes are needed in UCIS, it will take a fulltime
person's time for a least a month to do this. She said if it is necessary and there are legal
requirements, she will take it back to the IT staff to make it a priority. The new system will not
be up and running until June 2011, but it will take all of our IT resources to get it ready for
production. She also stated our system is automated. Changes not only effect UCIS but the
systems of several agencies. Word changes can be made relatively easy but when new fields are
added, we have to make sure they are compatible with the other agencies' programs and that can
be a very difficult process.
Judge Hagerty said she believes the changes are necessary because judges are required to make
specific factual findings and the current forms make that almost impossible.
It was moved by Judge Fontaine, seconded by Judge Foughty, to approve the forms with
the narrative portion of the final order to receive first priority and be changed in the UCIS
program. The other changes to be updated in a realistic fashion at the programmer's
Mr. Ganje indicated that the text in the permanent order is intended to be a reflection in the
temporary order and there is a comment provision to both. If we go backwards, then you will be
working with a revised permanent order that doesn't look much like the temporary order.
After further discussion, the motion carried.
Justice Crothers stated the language on the hearing notice in the temporary order explains you
may appear before the court and explain why the petitioner's request for a permanent domestic
violence protection order should not be granted. He stated there has to be some clarity on how
the respondent can oppose. There appears to be a lack of consistent procedure across the state.
ICWA Louie Hentzen said last spring, the Council approved the training grant for court improvement.
Historically, money has been set aside in a training grant every year for ICWA forums. This
year, the ICWA Subcommittee for Court Improvement recommended we use the money to help
the Native American Training Institute to identify and recruit and train qualified expert witnesses
(QEW) to testify in court.
Chief Justice VandeWalle said it would be a conflict of interest similar to that which arose with
the indigent defense. He suggested perhaps the project would be more suited for human services.
Jim Ganje said in Montana, once the QEWs are identified by the tribe, the Department of Human
Services provides continuing education for the experts and then they are available to the tribe to
participate in the ICWA proceedings as necessary. That process was discussed with the North
Dakota Department of Human Services and they choose not to proceed.
Dennis Herbeck, chair of the ICWA subcommittee, said the QEW has been the primary issue on
the agenda for the past year and a half. Identifying and training the QEW is a way of moving
forward in trying to get that particular element available for our courts.
Bill Neumann agrees there would be a conflict of interest with the court system generating the
training of these witnesses however the conflict is even greater with the Department of Human
Services because they are generally the petitioner.
Judge Foughty said the role of the QEW is to provide knowledge about the tribal customs and
experiences of raising children and things of that nature.
After further discussion and review of the language of the federal code, it was determined that
the purpose of the QEW is to serve as a witness for the petitioner, as such, it is a conflict of
interest for the court to recruit and train the QEW.
It was moved by Judge Wefald, seconded by Judge Schmalenberger, to reject the proposal.
The motion carried.