Chief Justice Gerald W. VandeWalle, Chair
Judge James Bekken for Judge John Paulson
Justice Daniel Crothers
Judge Georgia Dawson (telephonically)
Judge Laurie Fontaine
Judge Donovan Foughty
Judge John Greenwood
Judge Gail Hagerty
Judge Joel Medd
Judge Allan Schmalenberger
Judge Robert Wefald
Judge William McLees
Judge John T. Paulson
Sally Holewa, Staff
Chief Justice Gerald VandeWalle called the meeting to order at 10:00 a.m. and welcomed the new members: Judge Medd, presiding judge of the NEC district; Judge Foughty, presiding judge of the NE district; Judge Fontaine, elected represented from Administrative Unit 1; and also introduced Dennis Herbeck, trial court administrator for Unit 1.
It was moved by Judge Wefald, seconded by Judge Medd, to approve the minutes of December 15, 2006 minutes. Judge Foughty referred the members to page 6, second to the last line, where he makes reference to "no" service in Rolette County. He suggested it be amended to read "minimal" service. After other minor typographical changes were noted, the minutes were approved as amended.
Appointment to Juvenile Policy Board
Referee Dale Thompson's term on the Juvenile Policy Board expired. He is eligible for reappointment and expressed interest in serving another term. It was moved by Judge Medd, seconded by Judge Wefald, to reappoint Referee Dale Thompson to the Juvenile Policy Board for another three-year term. Motion carried.
Policies 301 and 302
Chief Justice VandeWalle stated Policies 301 and 302 were on the agenda for discussion purposes only. The law does not require judges to live in their chambered city, it only requires them to live in the district in which their chambers are located. However, some time ago a policy was developed stating if you live outside of the chambered city, you will not be paid for transportation to the chambered city nor will you be paid transportation from your chambered city to your place of residence. Currently, we have six judges not residing in their chambered city. He is questioning if the policy is somewhat punitive.
Judges Hagerty and Dawson commented they have no problem in their districts.
Judge Wefald suggested if a state car is used, it should solve the problem with regard to mileage.
After further discussion, the matter was tabled until the next meeting.
Chief Justice VandeWalle explained there were instances in the past year when fees were coded wrong in UCIS. There is always a discretion on the part of the trial judge to impose a monetary fine, however when it is in the form of a fee, it becomes somewhat questionable if the fee is not authorized by statute. The fines and fees are posted differently. Some of them are fairly unique, including payments to non-judicial organizations.
Susan Sisk added that it has happened consistently in some areas. Judge Medd said in the past, the states attorney was reducing Driving Under Suspension to No Valid Driver's License in Possession, which is a $20 administrative fee. Because the state believed the plea agreement is a benefit to the defendant, they were recommending the court charge a $30 administrative fee.
Chief Justice VandeWalle said Grand Forks is not alone and there are some others that are charging fees for different reasons.
Donna Fair said in the past one district was charging a warrant fee and ordering that the warrant fee be paid to the county to reimburse the sheriff. She added that recently there were some coding issues in Burleigh County, which resulted in some fees being coded to a defunct county fee code. This was a clerical error that has since been resolved.
Judge Schmalenberger said there are specific and unique statutory fees that from time to time are allowed and asked if a list could be provided.
After further discussion, the matter was tabled and will be brought back at the next meeting with a list of acceptable fees.
Training for Electronic Court Recorders
Chief Justice VandeWalle stated there has been some concerns with the mechanics of training court recorders and referred the Council to Sally Holewa's proposal. Under her proposal, new hires would be teamed with an experienced recorder to learn UCIS, annotation, and transcribing. The IT Department would provide technical training on the use of the equipment.
Judge Hagerty suggesting making the training on the recording equipment available to the court reporters. Court reporters record on occasion so it would be helpful for them to have the experience.
Judge Foughty said in order to guarantee an accurate transcript, it is important to have a court recorder/reporter do the trials rather than someone that does it occasionally. Sometimes the people in the courtroom have been unfamiliar with the equipment and hesitant to interrupt proceedings when the tape is not picking up voices.
Judge Bekken said from a rural standpoint, the only person available to cover a proceedings is the clerk. He said the clerks in Griggs, Wells and Foster Counties are well trained to run the equipment. In the rural areas, it is very difficult to get someone to cover and has become a real problem. He suggested whatever policy or training that is developed include the transcript preparation training as well.
After further discussion, the matter was tabled and will be placed on the agenda for the next meeting.
Children's Justice Initiative Summit
Louie Hentzen said he, along with Chief Justice VandeWalle and Paul Ronningen, from the Department of Human Services, attended a summit in New York City in follow up to the Children's Justice Summit that was held in Minneapolis in 2005. Their team listed the following areas to examine for possible action in the future: (1) expanding collaboration; (2) expedited appeals; (3) alternative dispute resolution (ADR); and (4) compliance with the Indian Child Welfare Act (ICWA). The areas listed will be passed on to the appropriate committees such as Court Improvement, Juvenile Policy Board, or other relevant committees.
Chief Justice VandeWalle said the Juvenile Policy Board sent a proposal to the legislature on ICWA. There was a bill introduced into the legislature that would have set up guidelines for active efforts to reunite the Indian child with the tribe. He said Cass County expressed their opposition and those provisions were removed from the bill by the Senate. The bill is now in conference committee.
Judge Wefald said he and Judge Christofferson attended the annual ICWA conference in Mandan. He indicated it was a very interesting and a worthwhile conference to attend.
Chief Justice VandeWalle said the expedited appeals are something he is concerned about. We have no appellate rule for expediting appeals. We have requests for continuances both at the trial court and appellate level, and they are often granted. UCIS shows that continuances were granted but there is no information as to why they were being requested. In talking with other courts, they rarely allow continuances. It is something that is going to be examined in our state.
With regard to ADR, Chief Justice VandeWalle said it is being used in a lot of other states. The main issue seems to be whether you can negotiate a termination of parental rights in an open adoption or if the biological parent is given some rights to see the child.
Mr. Hentzen also mentioned DHS has a contract with The Village to do a pilot project called Family Focus Groups which is an ADR-type discussion about where there kids are going to go permanently. The money will run out in June 2007. His concern is the agency removing the kids from the home is also the facilitator of the ADR program.
Judge Wefald said in Minnesota they have permanent guardianships where the parent of the Indian child can either approve an Indian family or non-Indian family, and the guardian family will effectively adopt the child but there still could be visitation by the natural parent.
Judge Fontaine suggested ADR would work quite well. More and more kids are living with grandparents or other family members. They need permanancy and the grandparents are willing to allow parents to visit.
Chief Justice VandeWalle said he met with the ADR subcommittee and asked them to do a protocol for our family mediation pilot project. They in turn suggested that we use the Dispute Resolution Center who is in the process of coming up with the protocol. He said the money went into the budget for FTEs. Because it is a pilot project and only lasts two years, the money has been changed from FTEs to a contract basis. That is not to suggest down the road that we would not hire people to do the mediation at the court level.
Louie Hentzen added that there is a national conversation going on regarding the ageing out process. Some states are appropriating monies to order the state to pay the child when the child reaches 18 to allow them some flexibility in setting some permanency when leaving the foster home. The kids need some assistance to develop the skills to independently live on their own. In our Children's Family Services Reviews (CFSR), we have started to include young people who have aged out of the system. We are hearing that in a lot of instances, they were rescued from a bad situation and had a positive experience with the foster case system but still are not ready to be out on their own right away.
Weighted Caseload Study and Clerk Staffing Statistics
Susan Sisk said she reviewed the weighted caseload statistics for 2005-06. The judicial needs went from a shortage of 4.14 in 2004-05 to a shortage of 5.1 for 2005-06, which is an additional .9% FTE. The East Central, Northwest, South Central and Southeast all show a judge shortage of greater than one. There are no areas with a judge excess of greater than one. The filings for 2006 went up by 8,801. The bulk of that increase was for misdemeanors and traffic, which are the two areas with the lowest case weight. Most of the increase in traffic came from three counties: Cass, Pembina, and Walsh.
With regard to the clerk staffing statistics for 2005-06, Ms. Sisk said the statewide clerk need decreased by 1.82 FTEs. The state employed clerk offices decreased by .86 FTEs while contract offices increased by .96 FTEs. The filings increased with the bulk of the increase in traffic. Criminal filings decreased by 531, civil filings decreased by 599, and the total FTE need decreased by 3.44 from 2005-06. The shortage in the state-employed clerk offices is 6.84. Cass, Grand Forks, Ward, Williams and Burleigh counties all have a shortage of greater than one and there are no counties with an excess of staff greater than one. There are 10 additional counties who have the option of becoming state employed, which would require 15 additional FTEs. However, that decision would be made in 2008 based on the 2006-07 statistics.
Chief Justice VandeWalle is considering a policy that would require approval of any out-of-country travel. He said he was surprised recently when a couple of judges requested out-of-country travel. These requests were denied because there is no indication that the training couldn't have been readily received either in the state or somewhere in the United States. The public perception of sending judges out of country would be that these were more about leisure than education. He was dismayed to find later that other judges didn't request permission and attended this conference. He intends to ask Sally Holewa to prepare an amendment to the policy that would cover out-of-country travel and bring it to our next meeting for discussion.
Judge Hagerty said on another note, she recently applied for her regular trip to the Judicial College and was told she needed to request approval because the trip was more than $600. She inquired if every application needs to be approved.
Chief Justice VandeWalle said he couldn't respond for Ms. Holewa but believes the concern is that if it is budgeted at a certain amount and you have the first five judges or so use up the full budgeted amount, there is not going to be any funds left for the others. He will also ask Ms. Holewa about the situation with regard to Judge Hagerty's tuition.
Susan Sisk said when the budget was prepared, $2,200 was allocated per educational opportunity per judge. The total includes registration, tuition, lodging, travel, meals, and other miscellaneous expenses that are reimbursable under our current policies.
Judge Wefald said he sent an email to Representative Metcalf who in turn forwarded it to the House. His memo said even though our population has not grown, our jail population has tripled. He said a lot of the crimes are drug related and suggested more money be put into probation.
Judge Foughty said he recently spoke with Warren Emmer, from the Department of Corrections, and Mr. Emmer said the House has cut several probation agent positions. He asked Judge Foughty for support on the Governor's proposal for extra FTEs for Parole and Probation. Mr. Emmer said he hopes to get more probation officers in the northeast part of the state. Judge Foughty said he sent an email to the appropriate committee supporting the needs for FTEs.
Dixie Knoebel announced that the juvenile drug court in Minot is up and running. It started January 11 and currently has four participants. It seems to be going very smoothly. Planning for a juvenile drug court in Williston has begun with the expectation that it will be up and running in 2008.
The next meeting will be May 23 during the Judicial Institute.