Justice Daniel Crothers , Chair
Judge Sonja Clapp
Referee John Grinsteiner
Jim Hill (until 11:15 a.m.)
Rep. Nancy Johnson
Judge Steven Marquart
Judge Richard Hagar
Sen. Karen Krebsbach
Capt. Michelle Hagel, JAG, Joint Force ND National Guard
Lonnie Wangen, Commissioner, ND Department of Veterans Affairs
Barney Tomanek, Director, DOCR Parole/Probation Division
Chair Crothers called the meeting to order at 10:00 a.m. and drew Committee members, attention to Attachment B (October 15, 2010) - minutes of the July 23, 2010, meeting. Rep. Johnson noted typographical errors on page 7, 3rd and 4th paragraphs.
It was moved by Jim Hill, seconded by Courtney Koebele, and carried that the minutes, with noted corrections, be approved.
Veterans Court Concept - Cont’d Discussion
Chair Crothers summarized the Committee’s July 23 initial discussion regarding the possible establishment of a veterans court or some similar process. He said the Committee’s tentative conclusion was to further review related activities by the Veterans Administration, the National Guard, and the state Department of Veterans Affairs to determine how best to proceed with the study.
Chair Crothers then welcomed Lonnie Wangen, Commissioner, ND Department of Veterans Affairs, for comments on the veterans court concept.
Mr. Wangen said the veterans court concept has been discussed at some length during meetings of the national association of state veterans department directors and there is general agreement that the concept is a good one and should be implemented if possible. He said veterans courts that have been established in other jurisdictions have proven to be fairly effective. He drew attention to a recent incident near Watford City involving a veteran and confrontations with law enforcement [discussed in newspaper articles included in Attachment C (October 15, 2010)]. He said a near tragic result was avoided through involvement of family members, the National Guard, the Governor’s office, his department, and the local veterans services officer. He said the court was able to fashion a disposition that ensured the veteran was able to receive appropriate treatment services. He stressed the importance of court awareness of treatment alternatives and the kinds of services available to veterans who may become involved in the criminal justice system.
In response to a question from Justice Crothers with respect to the Watford City incident, Capt. Hagel said the veteran’s sister had placed a call to the National Guard, which lead to involvement of the Military Service Center and a subsequent series of contacts.
Justice Crothers noted that docket entries concerning the case indicates that matters were addressed by the court at a bond hearing, with the veteran released on bond subject to conditions imposed by the court. The conditions, he said, appeared to be that the veteran seek treatment services from an appropriate provider. Capt. Hagel said the immediate concern before bond was set was the availability of a bed at a secure treatment facility.
Lonnie Wangen explained that the VA in Fargo has a secure facility but it is designed for short-term treatment options before transition to another facility. He said the objective in the Watford City incident was to ultimately place the veteran at the VA’s St. Cloud, MN, facility, which would provide treatment for both post-traumatic stress disorder (PTSD) and alcohol abuse. He said the facility is not a locked facility but authorities are notified if a patient leaves the premises.
In response to a question from Justice Crothers regarding veterans court approaches in other states, Mr. Wangen said it appears that in some areas general guidelines for identifying veterans and how cases might be handled have been established while in other areas full veterans courts, often referred to as mental health treatment or veterans treatment courts, have been established.
Justice Crothers noted the Committee’s previous discussion of the availability of deferred prosecution under Rule 32.2 of the Rules of Criminal Procedure. He said there is also the option of deferred imposition of sentence after conviction which may result in the sealing of record information if the defendant complies with probation conditions. He said the Committee’s general discussion suggests that North Dakota may be too large in area and too limited in resources to establish full veterans courts in very many locations. Some alternatives, he said, may be focusing on courts in certain areas, providing more thorough education and information for judges who would hear cases involving veterans, and developing particular protocols for judges to use in cases involving veterans.
Jim Hill said there is likely broad agreement that pursuing something like a veterans court process would be a worthwhile effort. The challenge, he said, is to determine what can be done within current system resources. He suggested appointing a taskforce or subcommittee with representatives from various groups to consider a continuum of actions that could be implemented to ensure the courts are able to respond effectively in cases involving veterans with PTSD or other trauma.
Bill Brudvik agreed the Committee should consider development of some sort of protocol or intermediate step short of establishing a veterans court.
In response to a question from Rep. Johnson, Justice Crothers said the court’s information system does not collect information that would indicate whether a defendant has a military background.
Justice Crothers said that at a minimum the system should probably consider ways of developing more information about veterans and PTSD-related issues which can be made available to judges and lawyers.
Judge Clapp observed that judges generally have background information about defendants in felony cases, but similar information is not often available in misdemeanor cases or other kinds of cases in which similar issues might arise, such as domestic violence.
After further discussion, it was moved by Jim Hill, seconded by Referee Grinsteiner, and carried that the Chair appoint a subcommittee with representative membership to consider a range of possible actions that could be implemented to address cases involving veterans with PTSD or other service-related trauma.
Chair Crothers said membership for the subcommittee will be considered, with an expectation that the subcommittee present at least a preliminary report to the Committee in the spring.
Chair Crothers next drew attention to Attachment D (October 15, 2010) - the Chief Justice’s referral of review of Hawaii’s Opportunity Probation with Enforcement Program, and related information. He said the Chief Justice’s letter notes that District Judge Donovan Foughty in Devils Lake has indicated an interested in pursuing a pilot project based in part on components of the HOPE program. Staff noted the background information includes an article written by Hawaii Circuit Judge Steven Alms setting out benchmarks for the success of the program and an evaluation of the program included in a recent article in Governing magazine.
Chair Crothers then welcomed Barney Tomanek, Director, DOCR Parole/Probation Division, for comments regarding the HOPE program and a possible pilot project.
Rep. Johnson asked where opposition to such a program would most likely arise.
Mr. Tomanek said a program similar to the Hawaii program would likely require a unique area in which to work and would require that all personnel - judges, probation officers, law enforcement, prosecution, defense counsel, and treatment providers if any - work very closely together. One complication, he said, is that some jail facilities are already full and it would be difficult for jail administrators to find space for probationers in the program who may be brought back in for short-term incarceration as a result of a violation. He said DOCR is interested in considering the possibility of a pilot project but is cautious about the amount of resources and personnel it might require.
Judge Marquart said the background information indicates that probationers involved in the Hawaii program are felony high-risk offenders who are most often on supervised probation after release from prison. He wondered how a similar program could work in our system.
Justice Crothers noted that a significant difference is that probation in Hawaii is handled within the court system, while in North Dakota supervised probation is handled through DOCR. He wondered whether a HOPE-type program would increase the number of probation contacts. He said Judge Foughty has mentioned that there are too few probation officers in his area for the number of probationers and, as a result, it is difficult getting a probationer back into court for a violation. He said a HOPE-type program may require much more in the way of probation resources than it may require of in court resources.
Aaron Birst suggested that if Judge Foughty would like to implement a pilot program and can obtain the necessary level of commitment from others who be involved in the process, then he should consider moving forward.
Barney Tomanek said a much greater buy-in from the stakeholders in the Devils Lake area would be needed to move forward with a project. Nevertheless, he said, the concept of a pilot program could be considered further. He said the initial question is which offenders would be targeted. He said involving high-risk offenders in the program may not be workable in North Dakota. He said a HOPE-type program in the state may be better suited for offenders being placed directly on probation, while the DOCR transition program may be the better method of dealing with those released from the penitentiary. He said as a general matter the basic concerns include whether there are adequate resources, the number of probationers that may be involved, and the time commitment that may be required. He said if Judge Foughty is willing to attempt a HOPE-type program, the department would be willing to consider how the program could be implemented.
Judge Marquart noted Judge Foughty’s concern that too many probationers are falling through the cracks and wondered whether that is a common experience across the state.
Mr. Tomanek said Judge Foughty requires that probation staff inform the court and state’s attorneys whenever probationers fail to comply with probation conditions. Consequently, he said the practice is similar in a small way to the more intensive involvement that is part of the Hawaii program. Judge Marquart said courts in Fargo do not have the luxury of following a similar approach because of the high number of offenders that process through the courts and the probable impact on probation services.
Justice Crothers said an alternative might be for Judge Foughty to develop a program proposal to be implemented locally. He said a HOPE-type program may not be workable on a state-wide basis.
Aaron Birst noted that part of the HOPE program involves bringing the probationer back for a short period of incarceration following a violation. He said that will likely result in funding issues for counties because of the associated costs for the local jail.
Mr. Tomanek noted that Judge Foughty has obtained the cooperation of the local jail for the process he is implementing. However, he said, there may be additional transportation costs for sheriffs if they are required to transport a probationer to a jail facility.
Following further discussion, it was moved by Aaron Birst, seconded by Courtney Koebele, and carried that implementation of a HOPE-type program on a statewide basis is not considered feasible at this time, but a pilot project should be considered in the Devils Lake area if Judge Foughty is successful in obtaining the commitment and cooperation of various stakeholders and participants.
Administrative Rule 34 - Activities by Domestic Violence Advocates - Draft Amendments
Chair Crothers next drew attention to Attachment E (October 15, 2010) - draft amendments to Administrative Rule 34 governing the activities of domestic violence advocates. He noted the Committee’s review at the July 23 meeting of draft amendments intended to allow advocates to provide assistance to anyone seeking a disorderly conduct restraining order. He said the Committee’s discussion and comments from Janelle Moos, Executive Director, ND Council on Abused Women’s Services, resulted in requested amendments that would permit assistance, but only in situations in which the alleged conduct involved a family or household member as defined under the protection order statute.
Staff explained that the new draft amendments were distributed for comment to the Council and domestic violence program directors. The comments submitted by Ms. Moos are included as Attachment F (October 15,. 2010). The comments, he said, conclude that the Committee should not recommend amendments to AR 34 because of the inherent differences between domestic violence and disorderly conduct, the potential for conflicts as a result of the expanded category of persons who could request program services, and the difficulty associated with the expectation that programs would provide services to anyone seeking a restraining order rather than a more narrowly-defined group.
Justice Crothers observed that amendments authorizing advocates to assist with restraining orders may encounter resistance because advocates would be involved in determining which process- protection order or restraining order - may be more appropriate depending on allegations contained in the petition. That, he said, may appear to be too close to the practice of law.
Following further discussion, it was moved by Bill Brudvik, seconded by Judge Clapp, and carried that the Committee not recommend amendments to Administrative Rule 34 to extend assistance in disorderly conduct restraining order situations.
Records Retention Issue - Criminal Records
Staff distributed a letter from Aaron Birst, Committee member and also Executive Director of the State’s Attorneys Association, which relays concerns of the U.S. Attorney’s office about the current record retention periods for certain criminal record files [copy attached as an Appendix]. He said Administrative Rul 19 governs the judicial system’s records retention schedule. The schedule, he said, currently provides that misdemeanor files are generally retained for seven years after final disposition and felony files are retained for 21 years after final disposition. He said AR 19 requires that any suggested changes to the records retention schedule be submitted to the Committee for review and comment. He said the state court administrator promulgates a retention schedule that is filed with the clerk of the supreme court and the clerks of district court.
Mr. Birst he said the federal prosecutors’ concern is that current retention values for criminal cases are insufficient to enable effective use of record information about state convictions for purposes of sentence enhancements in the federal court system. He said there is a particular issue with respect to criminal cases involving domestic violence since state conviction information can be used indefinitely in the federal system for purposes of prohibitions on firearm possession. He said while he is not necessarily advocating for the changes sought by the federal prosecutors, he agreed to relay the concerns.
In response to a question from Justice Crothers regarding the possible retention periods preferred by the federal prosecutors, Mr. Birst said misdemeanor conviction information can be used under federal law for ten years. He said record information concerning convictions in domestic violence-related cases likely should be retained permanently, but if that is not possible 15 to 20 years may be a workable alternative. He said retention of felony files for 30 years may be preferable to 21 years, but files retained for 21 years would likely cover the majority of cases that arise in federal court.
Following discussion, it was moved by Courtney Koebele, seconded by Aaron Birst, and seconded that the Committee recommend that misdemeanor records be retained for 10 years rather than 7 years; that felony records be retained for 30 years rather than 21 years; and that misdemeanor and felony records related to violating a protection order be retained permanently or a minimum of 15 years if permanent retention is not feasible.
Chair Crothers said Committee members would be contacted about a 2011 meeting schedule. He said the subcommittee reviewing veterans court issues would likely meet after the first of the year with the objective of submitting a report at the Committee’s next scheduled meeting.
There being no further business, the meeting was adjourned at 12:40 p.m.
Jim Ganje, Staff