Present: Chief Justice Gerald W. VandeWalle, Chair Judge Sonja Clapp for Judge Medd Justice Daniel Crothers Judge Gail Hagerty Judge William Herauf Judge Laurie Fontaine Judge Donovan Foughty Jim Hill Judge Steven McCullough Judge William McLees Judge John Paulson (telephonic) Absent: Judge Georgia Dawson Judge Joel Medd Judge Robert Wefald Sally Holewa
Staff: Louis Hentzen
Others Present: Dennis Herbeck Rod Olson Don Wolf Donna Wunderlich Larry Zubke
Chief Justice Gerald W. VandeWalle called the meeting to order at 10:00 a.m. Chief Justice
VandeWalle noted that Justice Daniel Crothers has been re-elected as the Supreme Court
member to the Administrative Council, and Judge Steven McCullough has been elected as the
new representative from Unit 2 replacing Judge Greenwood.
Minutes It was moved by Judge Hagerty, seconded by Jim Hill, to approve May 18, 2009 minutes.
The motion carried.
Final Budget Status Report of Biennium Don Wolf, Director of Finance, gave a final budget status report for the 2007-09 biennium. The
total Judicial Branch expenditures were $66.6 million, of which $64.7 million was from the
general fund. He reported a general fund turn back of 3.4% or $2.25 million, with $454,312
from the Supreme Court, $1,779,115 from the District Court, and $22,303 from the Judicial
Conduct Commission/Disciplinary Board. This is in line with the turn back over the previous
decade, which was as low as 2.8% and as high as 4.4%. He said the amount was slightly ahead
of the estimate given to the Legislature due to the slight discrepancy in the UCIS replacement
Request for Law Clerk Staffing Study Judge Hagerty stated because the ratio of law clerks to judges is widely varied around the state,
the judges of the South Central Judicial District are requesting the Administrative Council take
steps to develop staffing standards for law clerks so all judges have equal access to law clerk
Judge Paulson said he supports the idea of staffing standards but suggests the standards be
applied on a unit basis.
Chief Justice VandeWalle had no objection to the study but requested that an efficiency factor be
included in the staffing standards because a judge can utilize a law clerk more effectively when
all of the judges are in one location compared to those that are in multiple chambers.
Judge McCullough said it appears the law clerks are almost like an unknown quantity in our
system and supported the idea for staffing standards.
Judge Foughty said Judge Medd asked him to relay a request that consideration be given to
adding the law clerk as a classified position. Chief Justice VandeWalle said that the length of a
law clerk's tenure is something that should be considered in developing a staffing standard
because a law clerk should be able to perform faster and better as he or she gains experience.
Judge Hagerty said she disagrees with Judge Medd because usually law clerks are recent
graduates and are only employees of the court for a year or so.
It was moved by Judge Hagerty, seconded by Judge Herauf, that a study of staffing levels
of law clerks to be completed prior to the budgeting process for the next biennium. The
Chief Justice VandeWalle indicated that if anyone had suggestions on the criteria for the study to
contact Sally Holewa.
Clerk of Court Manual Recommend Revisions The Committee on Trial Court Operations reviewed the Clerk of Court Manual and is
recommending minor changes to clarify current procedures and practices and to reflect recent
statutory changes. One of the proposed amendments to section 9.3 relating to juvenile court
records and files would direct the clerk to open only one file if an initiating document names
more than one child. This change was recommended by the trial court administrative personnel
who concluded that opening one file would be a more efficient method of managing case files.
Louie Hentzen referred the Council to Sally Holewa's memo wherein she states at the time the
proposal was taken to the Trial Court Operations Committee, there was a misunderstanding of
how the Odyssey Case Management System operates. Although the clerks can associate files,
they would still need to assign a separate file number to each child in order to enter data related
to the child. Mr. Hentzen added the Odyssey system would not be able to track case standards or
outcomes of individual children in the performance measures established by the national
organizations if they had multiple children under a particular case number. To rectify the
situation, Mr. Hentzen said Jim Ganje is proposing the second sentence in section 9.3(C) of the
manual be stricken.
Judge Clapp said the language in the first paragraph under section C refers to opening one file
while the third paragraph under C states each child on the document must be entered in the case
management system as an individual party. Mr. Hentzen responded that in the new case
management system, everybody is listed as a party and each get a unique identifier. Five
identifiers can be assigned to one case number. For example, if a deprivation case is filed and
three children are named, three separate files will be created.
Judge Fontaine stated that is how it has been handled in her district. She said she has not had any
problems because the documents are usually identical.
Larry Zubke said in order to get individual reports for each child in the pilot system, they need to
be entered as a separate file. Once we are in an electronic environment, those cases can be
associated so the judge can see all of them.
Rod Olson commented it will be harder when we go to paper on demand on October 12.
Bringing one file up on the screen works well, however, it may be difficult to fit three files on a
Mr. Hentzen stated Ms. Holewa sent an email to him this morning from Kosovo saying that she
did not object to any of the other language in the proposed amendments to the clerk's manual.
It was moved by Judge Paulson, seconded by Judge McCullough, to adopt the proposed
changes with the amendment. The motion carried.
Use of ITV for Remote Appearances on Warrants At the last Court Technology Committee meeting, the issue of whether interactive television
(ITV) should be used for remote appearances on warrants was discussed. The Technology
Committee concluded the issue was a business process question and referred it to the
Administrative Council for discussion.
Judge Clapp said Judge Medd asked her to relay some comments to the Council. She said he
indicated that in addition to the IVN appearances, the Council should consider telephone
appearances. For example, if we have a Grand Forks warrant and the person is arrested in a
western jurisdiction, if they do not have access to ITV, a telephone appearance could be made on
that warrant to determine the plan of action. This would eliminate having the sheriff travel
across the state to pick up the person.
Larry Zubke commented that the Court Technology Committee concluded that the technology is
there in many of the courthouses around the state but the issue became whether or not it is legal.
Chief Justice VandeWalle agreed it is a legal issue and would require the amendment of some
statutes and rules.
Judge Hagerty suggested it be sent to the Joint Procedures Committee to review. She said she
does not view this as a venue issue because the court is actually being held in the county where
the warrant was originated. The defendant is appearing either by telephone or by ITV and
generally would do that without any objection. There would be a big savings in the cost of
transporting people to appear on what is usually a very short proceeding.
Judge McCullough suggested staff council review the issue. Judge Fontaine agreed it should be
reviewed from a legal standpoint and said this would be helpful in the very rural counties.
Judge Foughty said the Court System could be more efficient and helpful to a lot of different
agencies if we were able to connect either by phone or ITV to speak to someone across the state
particularly if it is a bench warrant for nonpayment of fines.
It was moved by Judge Herauf, seconded by Judge McLees, to ask Jim Ganje to review the
rules to determine what changes are necessary in order to accomplish this. The motion
Service of Small Claims Documents North Dakota Century Code 27-08.1-02 allows service of small claims documents by certified
mail and our forms use the same language. There is a discrepancy between what the small
claims forms and Century Code say and what actual judge practice is in some of the areas of
state. Some judges are accepting this as valid service while others are relying on case law to
require service by restricted delivery.
Judge Hagerty said the case law states you have to prove actual receipt of the documents. One
way to do that is to have the sheriff serve it, and the other way is to mail it with a return receipt.
She said the defendant should receive personal service so we have proof the person actually
received the documents because there is no appeal from the small claims judgment. She
suggested language be included in the instructions stating this. After some brief discussion, it was moved by Judge Hagerty, seconded by Judge Paulson, to
instruct the State Court Administrator's Office that instructions be included when the
small claims packets are assembled to clarify proof of actual receipt of the small claims
documents through restricted delivery.
Judge Paulson suggested the actual receipt of the claim affidavit and order for appearance should
satisfy. He said in his district, about 85% of the cases are served by the sheriff.
Judges Herauf and Fontaine said both of their districts require proof of service. Judge Fontaine
agreed with Judge Hagerty that the case law is there but suggested a statutory change be required
in the future so it is in compliance.
The motion carried. Chief Justice VandeWalle asked that the notice be sent out to the court
community so they are aware of the change before notice is given to the public.
Clerk Involvement in Monitoring and Enforcing Non-Monetary Conditions of Sentence The memo from Carolyn Woolf included in the meeting materials requests clarification from the
Administrative Council on clerk involvement in monitoring and enforcing non-monetary
conditions of sentence. She said the legislative change regarding felony convictions sentenced to
less than one year incarceration will be deemed to be an A misdemeanor upon the completion of
incarceration and/or the probationary period. If there has been no activity on the case, the felony
class changes to an A misdemeanor. Ms. Woolf asked if there should be a more complete review
of the file to make this decision and, if so, through what process?
Judge McLees commented after the 61 days, it seems to be an automatic process. Judge Lee is
wondering if the process is correct, and if so, what kind of an investigation ought to be done
before the defendant is entitled to that benefit. He suggested the state's attorney should take the
responsibility to make sure the person is actually entitled to the misdemeanor disposition.
Judge Hagerty said the judges in her district do not issue a subsequent dismissal order because on
the judgment form, it says it will be dismissed 61 days and that is what the clerk does
unless there is a petition to revoke. She said the clerk is monitoring the payment of fees so if a
defendant is not paying, an order to show cause would be issued.
Dennis Herbeck stated in Grand Forks, when it gets close to the 61-day period, the clerk sends a
list to the state's attorney. He said it should not be the clerk's responsibility but the clerks are
doing it as a precautionary measure.
Judge McCullough commented he likes the current process. He said right now the default
condition is if we do not hear anything, we assume it has been complied with. Judge Paulson
stated that the process is similar to that used for deferred impositions.
Judge Fontaine likes the current process. In her county, the clerk sends a list to the state's
attorney's office and they have 30 days to let the clerk know if there are any objections to the
dismissal. She believes that should be the extent of the court system's responsibility.
Judge Clapp stated she is not comfortable signing her name on something unless someone has
Rod Olson said he does not believe it is the clerk's responsibility to notify the state's attorney.
The clerk has to tell the computer to generate the notice so it is not an automatic process. If the
clerk fails to do that, then she takes on an unnecessary burden. Right now, Odyssey will be set
up to give notice to the state's attorney. A report will come out that the clerk will give to the
state's attorney asking them to check on the cases.
Judge Foughty said in his district, the clerk runs a criminal records check before he signs off on a
case. Out of the 11 counties, only one state's attorney in his district that sends him a note that
something has been deferred and is in compliance and asks the judge to sign an appropriate
Chief Justice VandeWalle suggested a survey be conducted to find out how each office is
handling it. He said whatever is decided, it should be uniform across the state. He said another
alternative would be to discuss the issue with the State's Attorney's Association.
Donna Wunderlich noted that not all of the municipalities are on UCIS so if the clerks are
checking UCIS, they may not be getting a complete history.
Judge Hagerty suggested that the minutes of the Joint Procedure Committee be reviewed since
the issue of automatic dismissal was discussed when it discussed when the rule was drafted.
It was moved by Judge McLees, seconded by Judge Fontaine, to ask the court
administrator's office to survey the clerks to determine what the current practices are
around the state for handling deferred impositions and felonies deemed to be
misdemeanors. The motion carried.