William A. Strutz, Chair
Judge Bruce Bohlman
Michael Kautzmann, Search Company of North Dakota, LLC
Chair Strutz called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (June 11, 1999) - Minutes of the May 7, 1999, meeting.
IT WAS MOVED BY SEN. STENEHJEM, SECONDED BY REP. DELMORE, AND CARRIED UNANIMOUSLY THAT THE MINUTES BE APPROVED AS MAILED.
At the request of Chair Strutz, staff distributed and reviewed a worksheet identifying unresolved issues concerning the draft administrative structure proposal initially reviewed at the May 7 meeting. Staff said the worksheet briefly lists issues identified for further discussion in the draft proposal or as a result of previous Committee discussion. A copy of the worksheet is attached as Appendix A.
With respect to Issue 1 concerning lay membership of the Judicial Council, Tom Trenbeath, a subcommittee member, said the subcommittee's discussion centered on whether lay members were necessary in light of the operational nature of the Council's responsibilities. In light of the specialized nature of the Council's responsibilities, he suggested that two additional members of the bar be substituted for the lay members. Judge Foughty, also a subcommittee member, said one positive element regarding lay membership is that they may bring a business and management perspective that may be helpful in analyzing court operations. But, he said, that management perspective could likely be obtained from members of the bar. As a consequence, he said, he would have no objection to substituting additional members of the bar for the lay members.
IT WAS MOVED BY JUDGE FOUGHTY AND SECONDED BY TOM TRENBEATH THAT THE MEMBERSHIP OF THE JUDICIAL COUNCIL BE MODIFIED AS DISCUSSED.
Judge Jorgensen observed there is value to the judicial system in having lay member participation on judicial system committees. Justice Neumann noted the option of lay membership on Judicial Council committees or on committees established under the Supreme Court.
THE MOTION CARRIED UNANIMOUSLY.
With respect to Issue 1 regarding term limits for certain Council members, Justice Neumann suggested adding a comment suggesting that the Supreme Court consider term limits for Council members other than the chief justice and the presiding judge members. Committee members agreed.
With respect to Issue 2 concerning whether the qualifications of the state trial court administrator should be established by Judicial Council policy or Supreme Court policy, Ted Gladden suggested Supreme Court policy should apply as personnel qualifications generally are governed by
Supreme Court personnel policies. Tom Trenbeath suggested, however, that the Judicial Council should be able to determine the qualifications of the state trial court administrator because that person will work closely with the Council in developing and implementing Council policies. Following a show of hands, Committee members determined that qualifications of the state trial court administrator should be set by Supreme Court policy.
With respect to Issue 3 concerning whether juvenile court staff should be subject to supervision by the state trial court administrator, Judge Foughty observed that there are different kinds of juvenile court staff. One example, he said, is the probation officer, who generally works for the juvenile court supervisor. The supervisors, he said, might be considered as acting in a quasi-judicial fashion when conducting informal hearings and determining informal dispositions. As a result, he said, judge supervision may be more appropriate.
Judge Jorgensen said there is a need for uniformity in juvenile court policy and procedure. Although policy and procedure have improved greatly in recent years, he said, that improvement should continue and administrative supervision may assist in that regard.
Judge Foughty agreed with the goal of achieving greater uniformity. However, he said, there is a concern that a juvenile court officer should not be required to answer to an administrator for the performance of something like a judicial function. Staff noted that the draft rule in Section 5B(4) describes the state trial court administrator as "organizing and directing district court and juvenile court administrative support staff...".
Paul Kloster asked what is entailed in "organizing and directing" staff. Staff responded that one example is in Section 5B(7), which gives the state trial court administrator the responsibility of determining organizational requirements and, in consultation with the Judicial Council, assigning personnel as needed to ensure added support services are provided.
Judge Foughty reiterated that he is not enamored with the idea of an administrator hiring a juvenile supervisor. Traditionally, he said, the presiding judge has been the hiring authority and that hiring process should be continued. Staff said one matter left unaddressed by the draft proposal is the full extent of personnel authority vested in the state trial court administrator. Under the proposal, he said, the administrator would have supervisory authority, including the previously referenced authority to move personnel, but would not have hiring and firing authority.
Justice Neumann said the thrust of the subcommittee proposal is to make clear that the authority to decide how administrator matters are handled would reside with the Judicial Council and not with individual judges. The subcommittee, he said, fairly quickly concluded that once the Judicial Council had adopted a policy or procedure, then each presiding judge would be obligated to carry out that policy or procedure within the particular judicial district. To the extent that the state trial court administrator is to assist in implementing Council policies, he said, the administrator should have the authority, duties, and responsibilities, outlined in Section 5B. However, he said, the authority is not independent nor unilateral, but is derived from the general authority of the Judicial Council to set policy and procedure.
Judge Foughty said the fear and concern about the proposed Judicial Council is that local districts will lose local decisionmaking authority. He agreed that districts would lose some authority with the adoption of general policies and procedures. However, he said, districts should still be involved in the development and management of those policies.
With respect to Issue 4 regarding recommending a budget for the state trial court administrator, Justice Neumann said since the administrator would be responsible for devising general district budgets which would likely include a budget for the administrators office, it is probably not necessary to identify that responsibility specifically.
Chair Strutz drew Committee members' attention to Issue 5, regarding proposed administrative regions and how the regions would be established.
With regard to the region configuration reflected on the worksheet, Tom Trenbeath observed that the subcommittee only very generally, and without a definite conclusion, discussed the possible makeup of administrative regions. Staff agreed the regions identified on the worksheet were only hypothetically discussed and are provided on the worksheet simply for informational purposes.
Concerning whether the regions would be established by Council policy or Supreme Court rule, Mike Sturdevant said establishing the regions by Supreme Court rule would provide more opportunity for public comments than if the regions were established by Council policy. For that reason, he said, he would prefer establishing regions by Supreme Court rule. Judge Foughty agreed, although he said he is not entirely sure what administrative regions would accomplish or how the regions would operate.
Rob Hovland said establishing the regions by rule may be easier and more productive because the supreme court could consider the issue more objectively. Justice Neumann observed that detailed consideration of administrative regions at this point would likely pose a risk for the entire proposal. Consequently, he preferred addressing the issue separately.
Tom Trenbeath suggested that Section 6A be modified to delete the reference to the specific number of regions and simply leave the matter to the Supreme Court to determine the number of regions by rule. Justice Neumann suggested including a comment that the Supreme Court should consider establishing between one and three administrative reasons. He said there may be benefit to the Supreme Court from general committee and subcommittee discussion of, for example, the minimum and maximum numbers of regions.
IT WAS MOVED BY JIM ODEGARD, SECONDED BY TOM TRENBEATH, AND CARRIED UNANIMOUSLY THAT SECTION 6A BE MODIFIED TO PROVIDE THAT THE STATE IS DIVIDED INTO NO MORE THAN THREE ADMINISTRATIVE REGIONS AS DETERMINED BY SUPREME COURT RULE.
With respect to Issue 6 concerning membership of Judicial Council committees, Justice Neumann suggested the need for adequate representation of various constituencies and user groups on the Committees. He said it may be preferable at this point to simply leave the details concerning size and composition to be determined by the Supreme Court or the Judicial Council.
IT WAS MOVED BY JUDGE JORGENSEN, SECONDED BY TED GLADDEN, AND CARRIED UNANIMOUSLY THAT SECTION 7 BE MODIFIED TO PROVIDE THAT COMMITTEE MEMBERSHIP WILL BE DETERMINED BY JUDICIAL COUNCIL POLICY AND TO INCLUDE A COMMENT CONCERNING THE NEED FOR REPRESENTATION OF VARIOUS GROUPS ON EACH COMMITTEE.
IT WAS MOVED BY JUDGE FOUGHTY, SECONDED BY REP. DELMORE, AND CARRIED UNANIMOUSLY THAT THE DRAFT PROPOSAL, AS MODIFIED, BE DISTRIBUTED TO INTERESTED PARTIES, INCLUDING JUDGES, TRIAL COURT ADMINISTRATIVE STAFF, AND THE SBAND BOARD OF GOVERNORS, FOR COMMENT.
At the request of Chair Strutz, staff summarized Attachment D (June 11, 1999) - A memorandum providing background information regarding recent criminal records search issues. Staff said recent information received by clerks of district court indicated that the Bureau of Criminal Investigation was to be considered the exclusive source of criminal record information and, therefore, clerks of district court were not authorized to conduct criminal record searches and provide record information to requesters. He said the information cited the possibility of a Class A misdemeanor offense if record information was disseminated in a manner not authorized by statutes governing the Bureau's record information system. As a consequence, he said, several clerks have begun declining to respond to record search requests. He said the research included in Attachment D indicates that NDCC Ch. 12-60, which establishes the Bureau of Criminal Investigation's records system, was never intended to apply to the courts and was not intended to establish an exclusive source of criminal record information. The issue, he said, is whether guidance concerning the conducting of criminal records searches should be provided to clerks of district court.
Judge Jorgensen asked why, with current technology and the Bureau's record information, clerks should even consider conducting record searches. Particularly, he wondered whether clerks should be obliged to conduct searches and thus assume the completeness and accuracy of the records.
Bob Indvik said criminal record files are considered open records and a $10 fee has been established for conducting criminal record searches. Consequently, he said, he regards clerks as having a responsibility to conduct the searches. Judge Jorgensen wondered whether there is specific authority permitting or requiring a clerk to conduct record searches. He said clerks may be placed in an untenable position without that authority being clearly established. Sen. Stenehjem said when legislation was enacted in 1987 establishing the Bureau's record system, the legislation was never presented as setting out the exclusive method of disseminating criminal record information. He said a person seeking record information from the clerk of district court is entitled to obtain that information from the clerk. Paul Kloster agreed that court records, as open records, should be accessible and clerks should provide information about the records.
Dorothy Howard said the clerk's office in Cass County conducted approximately 490 record searches during the month of May. She said she regards clerks as having the responsibility to conduct record searches and clerks should continue to do so. Ted Gladden observed that public access terminals are available in some counties, so members of the public can conduct searches themselves.
Sen. Stenehjem said the fears of clerks are based on a misapplication of the statute. He suggested the possibility of obtaining an attorney general's opinion clarifying whether NDCC Ch. 12-60 prohibits clerks from conducting criminal record searches.
Michael Kautzmann, Search Company of North Dakota, LLC, explained that he works for approximately 500 out-of -state search companies and conducts record searches within North Dakota for those companies. He said some companies have expressed great concern about the change in procedure and some have simply directed that any record information previously obtained be discarded because of the potential criminal violation suggested in the distributed procedures. He noted that some clerks' offices are very helpful in providing information, while others are not. He said some clerks' offices permit access on-site to records, while others do not. With respect to obtaining criminal record information from the Bureau of Criminal Investigation, he said only two companies will accept search information obtained from the Bureau's record system. The primary concern, he said, is that the Bureau's record information is regarded as being only approximately 40-45% accurate.
Justice Neumann suggested that a properly framed request for an attorney general's opinion would be helpful, at least with respect to potential criminal liability for the clerks of district court.
Sen. Stenehjem said he would request an opinion clarifying application of the relevant statutes.
Michael Kautzmann observed that, in response to the new procedure, many companies have ceased conducting background checks on potential North Dakota employees, which places those applicants at a disadvantage in relation to other applicants.
Chair Strutz said the matter would be discussed further at the August meeting.
At the request of Chair Strutz, staff distributed and reviewed a draft administrative rule concerning duties and appointment of the clerk of district court. A copy of the draft is attached as Appendix B. Staff said Section 2 generally reiterates duties currently set out in NDCC Section 11-17-01, which will be repealed effective January 1, 2001, under H.B. 1275. He said the draft deviates from the statute with respect to Section 2B (clerk presence in court), 2J (handling and disposing of money), and 2K (other duties catch-all). He said Section 3 sets out the appointment mechanism for the clerk of district court once the clerk's term ends on January 1, 2003, or if a state-employed clerk resigns or retires. He said appointment options provided in Section 3A are for the clerk to be appointed by the presiding judge with the approval of the majority of the judges in the district, appointed by all the judges on a majority vote, or appointed by some other authority.
Judge Jorgensen said the italicized alternatives in Section 2B regarding clerk presence in court will likely not solve much. Someone, he said, will still have to decide whether a case is complex enough or whether the number of exhibits are such as to require attendance by the clerk. In most instances, he said, those decisions will be made by the trial judge. He suggested substituting "when requested to do so by the district court" for the draft alternatives.
In response to a question from Chair Strutz, Deb Simenson said clerks in Burleigh County have not been in court as much as they have been in the past. She said clerk attendance generally depends on such things as the number of exhibits or whether the judge considers clerk attendance necessary. Dorothy Howard said clerks in Cass County attend all criminal proceedings. In civil proceedings, she said, some state staff are used to operate electronic recorders, but the clerk's office still assists for jury trials, juvenile proceedings, and other kinds of civil proceedings.
Paul Kloster suggested that Section 2J be modified to refer simply to monies received in accordance with any applicable statute or order of the court. Similarly, he suggested that Section 2K be modified to refer simply to other duties as prescribed by applicable statute, rule, or policy.
Ted Gladden suggested including a provision in Section 2 requiring compliance with procedures set out in the Clerk of Court Manual.
With respect to Section 2I concerning keeping the record of witnesses in criminal actions, Bob Indvik said some clerks do not perform such a function and if they do, it is generally done as a favor to the state's attorney. Dorothy Howard and Deb Simenson observed that in Cass and Burleigh counties, respectively, the clerks do perform this function. Deb Simenson said the clerk in Burleigh County also keeps a record of witnesses in juvenile proceedings.
Bob Indvik suggested that Section 2F be modified to refer to keeping registers of criminal and juvenile actions, as well as civil actions. Additionally, he suggested Section 2D should be modified to refer to keeping a "money" judgment docket.
With respect to Section 3 regarding appointment of clerks, Rep. Delmore asked who would appoint or hire deputies and assistants. Doug Johnson observed that often the presiding judge will delegate hiring and other personnel decisions to others, such as the court administrator.
With respect to the bonding provision in Section 3C, Sen. Stenehjem said recently enacted legislation likely makes this bonding requirement unnecessary.
In response to a question from Ted Gladden, staff said H.B. 1275 contemplates a state-employed clerk in each county in which the county elects the state-employee option. A related issue, he said, is whether one clerk could be designated as something like a "chief" clerk for purposes of monitoring clerk operations and compliance with procedures in those districts.
Sen. Watne emphasized that the intent of H.B. 1275 is to maintain a clerk of court in every county.
With respect to appointment methods, Sen. Stenehjem suggested another option may be for the presiding judge to make the appointment "in consultation" with other district judges in the district, which is language similar to that found in several statutes that require presiding judge action. Rob Hovland said there is merit in requiring the actual approval of the majority of other judges in the district before an appointment is made.
In response to a question from Deb Simenson, staff said H.B. 1275 does not provide for any limit to the term of appointment for a clerk of district court. Rep. Mahoney suggested that the majority of judges in the district should have approval of the appointment if the appointment is without a specific time limit.
In response to a question from Sen. Stenehjem regarding clerk sentiment about the selection process, Bob Indvik said most clerks have a good working relationship with judges, although the direct relationship with presiding judges may differ from judicial district to judicial district. He said he would prefer to see other district judges involved in the decisionmaking. Dorothy Howard agreed.
Paul Kloster suggested a 4 or 6 year appointment term with a process then to follow for purposes of reappointment.
Dorothy Howard said her understanding of H.B. 1275 was that she, for example, would be appointed as clerk and after the term for which she was elected expired, the position of clerk would become a position like any other in the state system. Rep. Delmore said the implication then is that the clerk would not be placed in a separate, different employee category that requires something like a periodic reappointment process.
Ted Gladden wondered whether there is a useful distinction between hiring and appointing an employee. Basically, he said, the action is a hiring decision governed by regular personnel policies.
In response to a question from Jim Odegard, staff said the draft identifies the clerk position as a "classified", rather than "at will", position within the judicial branch personnel system.
Sen. Stenehjem said he would have serious concerns about placing terms of office on clerks of court. He said H.B. 1275 was not explained that way during the legislative session and was not intended to operate in that way.
With respect to whether what is involved is only a hiring decision, Rep. Mahoney said the clerk of court office, particularly in rural areas, is the last connection with the court system. He said there should be stability in the clerk's office so the community is assured of that judicial presence.
With respect to the job right of a classified employee, e.g., a clerk, Tom Trenbeath asked whether classified judicial system employees are subject to reduction in force if staffing standards, for example, are redefined. Justice Neumann said his recollection is that the Supreme Court's reduction in force policy applies to all Supreme Court and District Court staff. Additionally, he said, it must be kept in mind that in many counties, particularly rural counties, the clerk will continue to be a county employee under H.B. 1275. Any changes in that area, he said, will most likely come from legislative changes to the law or the Supreme Court's budget, which affect the contracting option.
Rep. Mahoney said the concerns of many rural legislators about the status of the clerk of court are based upon what has occurred with court unification. He said many rural legislators are concerned about continued judicial services to rural areas and the fear is that clerk services will decline or be withdrawn in a manner similar to that which has happened with respect to judicial presence in particular counties.
Chair Strutz inquired of Committee members' conclusions regarding the method of appointment for clerks.
IT WAS MOVED BY SEN. STENEHJEM, SECONDED BY JIM ODEGARD, AND CARRIED UNANIMOUSLY THAT SECTION 3A OF THE DRAFT BE MODIFIED TO PROVIDE FOR PRESIDING JUDGE APPOINTMENT WITH THE APPROVAL OF THE MAJORITY OF JUDGES IN THE DISTRICT.
With respect to the general allocation of judicial resources, Justice Neumann said the fundamental objective is to put judicial resources where the work is located. However, he emphasized that the judicial branch believes there should be a presence in each county to the extent that it is fiscally possible to maintain that presence. In many counties, he said, that presence takes the form of the clerk of district court. Consequently, he said, the clerks of district court play a very important and crucial role in the operation of the judicial system and providing services to the public.
No further business appearing, the meeting was adjourned at 1:45 p.m.
Jim Ganje, Staff